2. Briefly the facts are that the appellant is an assessee of Service Tax He filed a refund claim for Rs. 1,07,613/- and Rs. 2,06,327/- on the ground that the paid ST at the rate of 5% on the service rendered by him is not payable in as much as he printed advertisements on the Yellow page of the Telephone Directory because as per CCE Calcutta's Trade Notice No. 99/GL90/CE/PRO/CAL II/99 dtd. 16.9.99 no service tax is payable on such activity.
"Under the facts and circumstances of the case I hold that the appellant have not been able to prove that during the period under reference they had not undertaken the activities relating to making or preparations of advertisements, such as designing, visualising, conceptualising etc. as Advertising Agency, in respect of the clients from whom they had taken advertisements for printing & publishing telephone directories/yellow pages. They have also failed to prove that the amounts billed to the clients were not in respect of any of the above said activity or to what extent the amounts pertained to such activities. Mere issuance of credit notes; even with option to deduct charges at the time of next print of the Directory, would also not amount to the tax not having been passed over to the customers. Therefore, I do not find any other proper & valid reasons to hold that the OIO is vitiated and not proper, not correct or not legal".
4. The appellant on the other hand pleads that no service tax is payable by them in view of the T/N cited Supra; therefore they are not an advertising agency within the meaning of Section 65(3) of Chapter V of Finance Act, 1994; yellow page is not an advertisement; the appellant is engaged only in printing and publishing telephone directory; existence of Art Department in their office does not mean they are engaged in such work; that they issued credit notes to their customers and that the conclusion drawn by the Commissioner that they passed on the incidence of Tax is not warranted.
5. Apart from the merits of the case, the appellant having passed on the incidence of duty to his customers has no locus standi to claim refund of duty allegedly wrongly paid. It is now well settled that passing on credit notes does not mean that bar of unjust enrichment does not apply. This issue was well settled in the decision of a larger bench of the Tribunal in the case of S. Kumar's Ltd. v. CCE Indore [2003 (153) ELT 217 (L.B.)]. The refund has been rightly rejected on this ground.
6. The lower authority's findings are that the appellant is not merely engaged in printing and publishing advertisements. In addition he is also engaged in activity, which attract the definition of an advertising agency. The fact that he does not separately charge for these activities does not mean he does not undertake them. The bills raised by him do not indicate separately the quantum of charges for each activity undertaken by him. At this stage he cannot claim that the bills included printing and publishing charges which are not liable to be included in the chargeable service.
7. Having regard to the observations made above the appeal is rejected both on the issue of unjust enrichment and on merits.