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2014 (12) TMI 422 - AT - Service TaxRectification of mistake - Refund/rebate claim - Unjust enrichment - Held that:- There is no whisper anywhere of the unjust enrichment being involved, except in one case. Therefore, the lower appellate authority is not required to given any finding on an issue which was not urged before him. Therefore, the ground taken by the Revenue that it had urged this point before the lower appellate authority is not borne out from the records and, therefore, it cannot be said that there is an error apparent on the face of the record committed by this Tribunal. We further observe that while disposing of the appeal filed by the Revenue, we have also observed that the transaction involved is one of export, and therefore, the service provider is rightly entitled for the refund of the service tax paid. The learned counsel for the respondent also submits that even in respect of the export transaction, if tax is recovered from the customers, the same would not disentitle the tax payer from claiming refund as held by the hon'ble Bombay High Court in the case of Uttam Steel Ltd. vs. Union of India [2003 (8) TMI 55 - HIGH COURT OF JUDICATURE AT BOMBAY]. In Rashtriya Chemicals & Fertilizers Ltd. [2013 (3) TMI 478 - CESTAT MUMBAI], this Tribunal observed that even if grounds have been taken in appeal memorandum but if the same is neither urged nor argued at the time of hearing there cannot be any mistake which involves rectification. The same view was affirmed by the hon'ble High Court of Bombay in the same case reported in [2013 (10) TMI 1193 - BOMBAY HIGH COURT] - there is no merit in the contention urged in the Rectification of Mistake Application filed by the Revenue - Rectification denied.
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