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2021 (7) TMI 360 - CESTAT NEW DELHIRefund of service tax - booking of flat cancelled - principles of unjust enrichment - Department formed an opinion that appellant will gain unjust enrichment, as the service tax has already been collected from the customer - time limitation - reckoning of time limit of one year from the relevant date. Principles of Unjust enrichment - HELD THAT:- It is apparent that Shri K.K. Agarwal had agreed to purchase the residential unit from the appellant and accordingly, had paid the sale consideration of ₹ 8,50,000/- alongwith the amount of ₹ 38,250/- towards Service Tax liability of the appellant. Apparently and admittedly, said amount of service tax has been paid by the appellant to the Department. The another apparent fact is that the deal for sale of the said residential unit stands cancelled and the appellant has returned the amount of sale consideration i.e. ₹ 8,50,000/- to the buyer of the flats Shri K.K. Agarwal. ₹ 38,250 were also supposed to be refunded to him in the given circumstances, though the same has not yet been paid by the appellant. From that perspective it appears to be a case of unjust enrichment to the appellant - But there is enough acknowledgment on part of appellant that the said amount has to be returned to the customer, once it is refunded. As the said amount stands already paid to the Department, the Department is liable to refund the same. Hence it is held the Commissioner (Appeals) has erred while refusing the refund on ground of unjust enrichment. Time Limitation - HELD THAT:- There are no doubt the service tax was deposited by the appellant on 4th October, 2016 and 24 October, 2016 and the refund claim has been filed on 7th May, 2018 which is absolutely beyond one year from the date of deposit. But admittedly post the said deposit the circumstances arose due to which the transaction value against which the aforesaid service tax was paid, was got returned to the customer due to sale of the flat being not finalized - the date of adjustment in the present case is the date when the money received by appellant need to be refunded alongwith the amount of service tax. The period of one year, in the given facts and circumstances, shall reckon from 15.10.2017 when appellant returned the amount of sale consideration to Shri K.K. Agarwal instead of 04.10.2016. The refund claim filed on 7th May, 2018 therefore, stands very much within the period of one year. Thus, both the grounds taken by the Commissioner (Appeals) for rejecting the refund claim are held to be against the appreciation of the relevant facts of the present case. The order, accordingly, is hereby set aside - the appellant is directed to return the amount to Shri K.K. Agarwal within 15 days of receiving the said amount from the Department against the intimation thereof to the Department. Appeal allowed - decided in favor of appellant.
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