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2014 (4) TMI 176 - AT - Service TaxDenial of refund claim - foreign agency commission - Reverse charge mechanism - Unjust enrichment - Held that:- There is no show cause notice issued to the appellant nor any adjudication order has been passed for appreciation of the amount. The Service Tax was paid on 20.03.2009 and the decision of Hon'ble Bombay High Court in the case of Indian National Shipowners Association (2008 (12) TMI 41 - HIGH COURT OF BOMBAY) is subsequent to the deposit of the amount. In view of the law laid by Bombay High Court which is upheld by Hon’ble Supreme Court, we find that the appellants are not liable to pay Service Tax in respect of the services received prior to 18.04.2006 from the foreign service provider. The Hon'ble Karnataka High Court in the case of CCE Bangalore Vs KVR Constructions - [2012 (7) TMI 22 - KARNATAKA HIGH COURT] held that in case the tax has been paid which is not payable under the authority of law, the same can be challenged by way of refund. Hence, on merit, the appellants are entitled for refund claim. In respect of unjust enrichment, we find that the adjudicating authority has not gone into the issue and the Commissioner (Appeals) held that the appellants have not furnished any evidence that the burden of duty has not been passed on - As the issue of unjust enrichment has not been gone into by the lower authorities, therefore the impugned order is set aside and the matter is remanded to the adjudicating authority to decide the issue of unjust enrichment - Decided in favour of assessee.
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