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2023 (11) TMI 615 - CESTAT KOLKATARejection of Refund Claim - Exemption from payment of Service Tax towards GTA expenses - transportation of food stuff - reverse charge mechanism - belated filing of the refund claim - Refund claim being hit by time bar in terms of Section 11B or not - violation of principles of unjust enrichment - HELD THAT:- The co-ordinate Benches in various cases have held that refund claims filed on account of Service Tax paid by mistake, are not governed by the time limit specified under Section 11B - reliance can be placed in COMMISSIONER OF CENTRAL EXCISE (APPEALS), BANGALORE VERSUS KVR CONSTRUCTION [2012 (7) TMI 22 - KARNATAKA HIGH COURT] and M/S. 3E INFOTECH VERSUS CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, COMMISSIONER OF CENTRAL EXCISE (APPEALS-I) [2018 (7) TMI 276 - MADRAS HIGH COURT]. Coming to the point raised by the Learned AR with regard to non-addressing of the unjust enrichment by the lower authorities, as observed in the previous paragraphs, the Adjudicating Authority has failed to address this issue. No further Appeal was filed by the Department before the Commissioner (Appeals). The Commissioner (Appeals) has upheld the order passed by the Adjudicating Authority. The Revenue has not filed any Appeal by their grievance, if any about non-addressing of the unjust enrichment issue. This being so, when the Department itself has not addressed this issue at lower stages nor agitated by way of proper Appeal, such submissions made during the Final Hearing cannot be entertained by the Tribunal at this juncture. Therefore, the objection with regard to “Unjust Enrichment” cannot be sustained. Even otherwise, in the cited decision of the Tribunal in the case of M/S CREDIBLE ENGINEERING CONSTRUCTION PROJECTS LTD. VERSUS COMMISSIONER OF CENTRAL TAX, HYDERABAD – GST [2022 (9) TMI 844 - CESTAT HYDERABAD], it is held that Section 11B Provisions are not applicable which would also include the provisions of “Unjust Enrichment” under Section 11B also not being applicable in respect of such refund cases. Appeal allowed.
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