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2019 (9) TMI 1409 - CESTAT CHANDIGARHRefund of Service Tax - reimbursement of travelling charges incurred by providing taxable service - rejection on the ground of time limitation and unjust enrichment - period from 2006-07 to 2008-09. Time Limitation - service tax was not paid by the appellant whereas as per the order of the adjudicating authority, the appellant has paid the service tax along with interest and penalty - HELD THAT:- The said demand was set aside by the Commissioner (Appeals) on 18.12.2013 and the refund claim was filed on 13.06.2014 by the appellant. These facts are not in dispute. Therefore, holding a part of refund claim barred by limitation shows non application of mind as it is settled law that if the amount of duty/tax in dispute has been settled by the higher forum as not payable. Therefore, the assessee is not required to file refund claim. The Commissioner (Appeals) has held that the appellant is not liable to pay service vide order dated 18.12.2013 - it is responsibility of the Revenue to grant refund claim to the appellant within three months from the date of the order whereas in this case, the appellant has forced to file refund claim which was ultimately filed on 13.06.2014. Therefore, the refund claim cannot be held barred by limitation. Unjust Enrichment - HELD THAT:- The service tax in dispute was paid by the appellant along with interest and penalty during the pendency of their appeal before the Commissioner (Appeals). Therefore, the question of passing of tax burden on the service recipient does not arise. Moreover, with regard to the interest and penalty, the question of passing on the service recipient does not arise as none of the assessee can recover the amount of interest and penalty form the service recipient in law - the adjudication order itself shows that the appellant has not passed on the tax burden on the service recipient for the reimbursement of travelling charges. Therefore, the appellant is able to pass the bar of unjust enrichment. Appeal allowed - decided in favor of appellant.
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