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2013 (2) TMI 135 - HC - Service TaxRecovery of the refund - applicant being the transport operator (Service Provider) whereas TISCO, being the person who availed the services of the transport operator - Whether the Tribunal was justified in law holding the refund to be recovered from the applicant and not from TISCO where the applicant was not liable to pay tax and TISCO was liable to pay the tax and paid the tax and that tax has been refunded and paid to the applicant? - Held that:- It may be true that assessment can be against an assessee or a person who is liable to furnish the return in accordance with the rules and notice can be issued to that assessee only for charging any tax or for determination of tax or for quantification of tax or for imposition of penalty or interest but in this case, liability is determined and not in question. The amount has been paid to the Revenue and that amount is not refunded because of the setting aside of the order of demand in appeal or otherwise but that amount was refunded which could have been refunded only to that assessee, has been paid to the assessee’s agent but by virtue of the judgement of the Supreme Court in Laghu Udyog Bharati & Others [1999 (7) TMI 1 - SUPREME COURT OF INDIA] and the effect of the Supreme Court’s judgement was nullified by statutory enactment, validity of which has been upheld by the Supreme Court. In that situation, one of the legal proposition applicable is that, one who gets the benefit because of the order of the Court and that order is set aside, he is bound to restore the benefit from whom he got. Therefore, the Tribunal was fully justified in ordering the recovery of the said amount from the person to whom it was paid in view of the judgement of Supreme Court effect of which has been nullified by Finance Act, 2000. The plain and logical consequence of making such law is to restore status quo ante and imposing a duty and obligation on the noticee who got the refund under the overruled judgement to pay back that amount - against the applicant and held that the Tribunal was justified in demanding refund of the amount of the tax paid to the applicant from applicant with the liability of payment of interest @ 24%.
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