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2007 (2) TMI 595 - AT - Service TaxRefund of Service tax paid in excess - Banking and Financial Services - Unjust enrichment - Order Of lower authority is erroneous - HELD THAT:- The appellants initially paid service tax on the assumption that they are liable to pay the same. However, on discovery of the error, they refunded the service tax collected from their clients by way of issuance of credit notes and also cheques, then they filed refund claims with the competent authority. They produced the Chartered Accountant's certificate also. The issue is quite simple. As the appellants have returned the amount collected by way of service tax to their clients, it is evident that they only had borne the burden of service tax. When they applied for the refund of the amount to the department, they are rightly entitled for the same. But in the impugned order, the Commissioner has relied on the decision of the Tribunal rendered in the case of S. Kumar's [2003 (2) TMI 85 - CEGAT, NEW DELHI] to deny the refund. As rightly pointed out by the learned Advocate in matters of service tax it is very easy to identify the service provider and the client and also to decide as to who has borne the tax incidence. Issue of credit note to the clients is also a form of payment, as held by the apex court in the case of Mohd. Ekram Khan & Sons [2004 (7) TMI 341 - SUPREME COURT]. Hence, the order of the Assistant Commissioner in sanctioning the refund is legal and proper. In other words, when the service provider has returned the service tax collected either by way of cheques or credit note, there cannot be any question of unjust enrichment. Therefore, the appeal is allowed.
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