TMI Blog2021 (7) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... een 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 appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim to be barred by time, it being filed after one year of the deposit of service tax. The said proposal was initially confirmed vide Order-in-Original No.05/2018-19 dated 10.07.2018 and appeal thereof has been rejected vide the order under challenge. Appellant is now before this Tribunal: 4. Though none is present for the appellant as on date, however, it is observed that appellant has filed the written submissions with the prayer that his personal presence may not be impressed upon and that the present appeal may be decided as per the submissions forwarded in writing by him. Written submissions are perused. Order under challenge has been assailed by the appellant on the ground that since the amount of service tax paid by the buyer of the flat, has to be returned to the said buyer after the buyer cancelled the deal and appellant has returned the amount as was received as part payment from said buyer. It is written in the submission that in the given circumstances the question of unjust enrichment to the appellant does not at all arise. Accordingly, the findings of the Commissioner are prayed, to be set aside. 5. As far as the time bar issue is concerned, it is mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 I hold the Commissioner (Appeals) has erred while refusing the refund on ground of unjust enrichment. The similar situation and the impugned issue stands already decided as is apparent from the decision relied upon by the appellant in the case of Eldeco Housing Industries pvt. Ltd. (supra) wherein it has been held: 5. ..Further I hold that, as it has been clarified by the C.B.E. C. that service tax was not payable on the transactions of the appellant with respect to construction and sale of flats during the financial year 2006-07, the deposit of tax made by the assessee takes the character of deposit, and is not tax. The doctrine of unjust enrichment is attracted only in the case of deposit of tax. Further from the perusal of documents, and the orders of the Court below, I find that the adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration was returned to the customer Shri K.K. Agarwal on 15 October, 2017. It is post this date that the necessity arose to return the amount of ₹ 38,250/- also, as was collected from the said customer to discharge the service tax liability of the appellant. 11 B (B) relevant date means, - (a) ... (b) ... (c) ... (d) ... (e) ... [(ea) ...] [(eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof;] [(ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction;] The aforesaid provision applies to present case. 9. 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. 10. Accordingly, I am of the opinion that the period of one year, in the given facts and circumstances, shall reckon from 15.10.2017 when ..... X X X X Extracts X X X X X X X X Extracts X X X X
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