TMI Blog2010 (4) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... le only w.e.f. 1-5-2006. A show-cause notice was issued to reject the claim as barred by limitation. Held that- service tax not received from clients as evidence by balance sheet and Chartered Accountant’s certificate. Unjust enrichment not applicable. Refund admissible. - ST/18/2009 - A/184/2010-WZB/MUM/C-IV/SMB - Dated:- 13-4-2010 - Shri Ashok Jindal, Member (J) Dr. T. Tiju, SDR, for the Appellant. Ms. Sangeeta A. Panhale, Partner, for the Respondent. [Order]. - This appeal is filed by the Revenue against the impugned order whereby the Commissioner (Appeals) allowed the refund claim filed by the respondent. 2. The brief facts of the case are that the respondent obtained the service Tax registration and paid the Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore me. 3. Dr. T. Tiju, learned SDR appeared before me and submitted that the service of Auctioneers was duly covered in the category of 'Business Auxiliary Services' prior to 1-5-2006 as the prime job of Auctioneer is to provide sale of the movable and immovable property through bidding, which relates to the marketing or sales of prime goods and the same falls in the ambit of 'Business Auxiliary Services'. He further submitted that Commissioner has failed to appreciate that letter from the customers that service tax was not paid to the assessee is not a valid document. He also submitted that the refund claim is barred by limitation and doctrine of unjust enrichment is applicable to this case. To support his contention, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance on several case laws. 5. Heard both sides. 6. I find that in this case the issue before me is that (a) whether the respondents are liable to pay Service Tax on the Auctioneers service prior to 1-5-2006 under the category of 'Business Auxiliary Services' or not, (b) if not, whether they are entitled for refund claim of Service Tax paid by them, and (c) whether the refund claim is hit by doctrine of unjust enrichment? 7. I take up the first issue and I have seen the case of Karvy Consultants Ltd. (supra), wherein this Tribunal has held that when a new entry came into existence and the existing entry remained the same, in that subject of situation, the Service Tax liability arise from the introduction of the new entry and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Del.), this Tribunal had again held that the amount collected without authority of law, the assessee is eligible for refund. In this case also, prior to 1-5-2006, the provisions of Service Tax were not applicable on the respondents and the amount paid as Service Tax was not payable by them at all. In that situation, the provisions of Section 11B of Central Excise Act, 1944 extended to the Service Tax are not applicable to this case. Hence, the bar of limitation is not applicable to this case. 9. Now, I come to the third issue. I find that in this case the respondent has filed the refund claim for the amount, which they paid the Service Tax to the department, but they have not received the same from their clients. Moreover, this fact has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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