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2019 (7) TMI 1658 - AT - Service TaxApplicability of Doctrine of merger - Maintainability of appeal - power of Revenue to file an appeal before before Commissioner(Appeals) - Revision of orders by the Commissioner of Central Excise - training institute imparting vocational training - recovery of the erroneously sanctioned refund along with interest - time limitation - principles of unjust enrichment - HELD THAT:- The Commissioner(Appeals) has not examined the merits of the case, but had dismissed the Revenue’s appeal against the Deputy Commissioner’s order on the ground of maintainability. Such dismissal is also upheld by the Tribunal. During the relevant period section 84 of the Finance Act or any other legal provision did not provide for the Revenue to appeal to the Commissioner(Appeals) against an order passed by the Deputy Commissioner. There was only a legal provision for revision by the Commissioner within two years from the date of the order. As the issue was not examined by the learned Commissioner(Appeals) or by the Tribunal, but appeals were dismissed on the question of maintainability itself, the doctrine of merger does not apply in this case. Merits of the case - refund claim - applicability of exemption notification - non-collection of service tax from the customers - time limitation for reversal of refund - HELD THAT:- The case law of Pasha Educational Training Inst. [2008 (12) TMI 80 - CESTAT, BANGALORE] that the exemption Notifications No.9/2003-ST as well as Notification No.24/2004-ST are available to the coaching and training imparted by the appellant. On merits the appellants are eligible for the exemption Notification. Also, IRDA (Licensing of Insurance Agents) Regulation, 2000 require the specific practical training imparted by the appellant for anyone to work as an agent. Therefore, by undertaking the training one would be able to seek employment or become self-employed. The coaching/training imparted by the appellant is vocational training in terms of the exemption Notifications. Time Limitation - HELD THAT:- The appellant was not liable to pay Service Tax, but undisputedly they did so. The relevant period in the case is 19.12.2003 to 31.03.2006. The refund application was filed on 27.10.2006 which would mean that part of their refund claim was filed beyond the period of one year within which the refund claim must be filed. Part of the refund claim is within the period of limitation. Therefore, in our considered view it would meet ends of justice if refund is sanctioned within the period of limitation. Any claim filed beyond the period of limitation is not admissible in view of the statutory time limit. Principles of unjust enrichment - HELD THAT:- The refund claim must still be sanctioned, but credited to consumer welfare fund instead of giving it to the appellant. However, the appellants must be given an adequate opportunity to establish whether they have passed on the burden of the Service Tax to their clients or otherwise. Appeal allowed in part.
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