Order Date – 30 January 2023

Parties: M/s Sarovar Portico Vs Commissioner, Central Excise & CGST-Jaipur I

Facts –

• The Appellant, M/s Sarovar Portico, have made in room sales during the period October 2013 to March 2016. It was found during the audit that they were required to pay service tax, subject to abatement. Accordingly, the appellant on being so directed deposited the amount of service tax.
• Thereafter, show cause notice dated 08.03.2017 was issued. The SCN was adjudicated on contest and the demand was dropped vide OIO dated 31.05.2017.
• The appellant applied for refund on 05.02.2020. 
• It was alleged that as the appellant have debited the said amount in their profit and loss account, it amounts to passing on the incidence indirectly, and accordingly, they have not passed the bar of unjust enrichment. Accordingly, directed that the amount is liable to credit to Consumer Welfare Fund.

Issue –

• Whether the debiting in the profit and loss account amounts to passing on the incidence indirectly?

Order – 

• The Tribunal finds that appellant have not charged service tax under dispute in their invoices. Further, admittedly these amounts were paid under protest at the investigation stage.
• It was held that only by way of debit in profit and loss account, it does not amount to passing of the burden to a third person or the customer indirectly. An assesse is always at liberty to right back the expenditure debited in profit and loss account by way of adjustment in their capital account.
• Hence the appeal is allowed. The appellant is entitled to consequential benefits.