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2014 (1) TMI 413 - AT - Service TaxDisallowance of refund claim - Bar of limitation - Unjust enrichment - Tax paid due to mistake of law - Duty paid under protest - Held that:- When duty was paid under protest or when an assessee is contesting the leviability of a tax by filing appeals the entire payment of tax, during the period of contest, is treated as deemed protest and time bar is not applicable in such cases. Further, it is also a case of payment of service tax under mistake of law and as per the case laws relied upon by the appellant in Para - 2 above the present refund claim will not be time barred - aspect of unjust enrichment has not been examined by the original adjudicating authority and the first appellate authority in para 13 of his OIA dt 29/8/2009 has also observed that appellant has not submitted any proof in this regard. In the interest of justice, this matter is required to be remanded back to the original adjudicating authority to decide the issue in the light of principles of unjust enrichment laid down by the supreme court. Appellant will produce all the documentary evidences available with them in support of their claim that the duty refund sought for has not been recovered from any other person - Decided in favour of assessee.
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