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2017 (7) TMI 1182 - CESTAT ALLAHABADRefund of Service tax paid - tax was paid under protest - services being provided to their own members of the club - Club or Associations Services - rejection of refund on the ground of time limitation and unjust enrichment - Held that:- Having held that service tax was being paid “Under Protest”, the limitation prescribed under Section 11B will not apply - the refund claim by the appellant has to be held as having been filed with limitation. Unjust Enrichment - Held that:- The club, while providing services to its members, have not provided the same to a second person and such services have been held to have been provided to the club itself or to the member themselves - For invoking the principle of 'unjust enrichment’, the presence of two different parties, distinct from each other is required and it has to be held that the tax collected by the one, who is claiming the refund of the same has already been collected by him from the other party and the refund of the same cannot be allowed so as to make first party as unduly enriched - When services stands provided to himself only, and there is no second party, it cannot be said that the club would become unduly enriched by collecting the service tax from its members as well as by claiming the same as refund inasmuch as club and members have been held to be the same by various High Courts. The Tribunal in the case of Karnavati Club Ltd. vs. Commissioner of Service Tax, Ahmedabad [2013 (5) TMI 752 - CESTAT AHMEDABAD] has examined an identical issue and has held that members are not to be seen separately as client or customers. Services rendered to self cannot be equated with services rendered to client or customers and as such it has to be held that assessee passed hurdle of the principles of 'unjust enrichment’. Appeal allowed - decided in favor of appellant.
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