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2014 (8) TMI 339 - CESTAT MUMBAIDenial of refund claim - Unjust enrichment - GTA services - tax was paid at the rate of 12.36% instead of correct prevailing rate of 10.30% - Whether the doctrine of unjust enrichment would be applicable in the facts and circumstances of the case - Held that:- Goods were being sold on FOR basis. Freight was not being separately collected or shown in the invoices and freight (including service tax thereon) forms part of the sale price. Obviously, appellants have recovered the freight charges from the customers though indirectly. Further service tax on basic freight amount would be part of the over all freight charges and would therefore be part of the sale price - as per the analysis by the Commissioner and as per my analysis above, the burden of service tax has been passed on to the customer and therefore doctrine of unjust enrichment would be applicable. Another case cited is that of U.T. Ltd. (2007 (8) TMI 192 - CESTAT, NEW DELHI), in the said case Tribunal has asked Commissioner (Appeals) to verify whether the appellant in that case had collected amount more than the contracted amount as evident from the ledger, the invoice and the contract. In view of the fact that amount collected was not more than the contract amount Tribunal allowed the appeal. the sale price include all components including the basic freight cost and service tax on the basic freight cost. Thus service tax is a part of the freight and therefore burden of service tax has been passed on to the customer and the doctrine of unjust enrichment could be applicable - refund denied.
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