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2018 (2) TMI 329 - CESTAT BANGALORERefund claim - payment under protest - service tax paid on service of blending and bottling of IMFL on behalf of their clients was not taxable under Business Auxiliary Service as clarified by Ministry of Finance vide F.No. 249/1/2006 CX.4 dated 27.10.2008 - denial on the ground of time limitation and unjust enrichment - Held that: - Punjab & Haryana High Court in the case of Sarita Handa Exports (P) Ltd. [2010 (9) TMI 254 - PUNJAB AND HARYANA HIGH COURT] has held that any refund application beyond period specified under 11B of the CEA should not be entertained unless refund is as a consequence of declaration of a provision as unconstitutional - Though the learned counsel for the assessee has submitted that the entire amount which is claimed as refund was paid under protest but it is not clear from the order of the Commissioner (Appeals) that whether the entire amount which is sought to be claimed as refund was paid under protest or not. This case is required to be remanded back to the original authority to examine two things: - (a) Whether the entire service tax was paid under protest or not? - (b) the aspect of unjust enrichment should also be considered by the original authority in view of the documents produced by the assessee along with the certificate of CA certifying that incidence has not been passed on to the client. Appeal allowed by way of remand.
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