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2023 (5) TMI 1269 - AT - Service TaxRefund claim - Service Tax paid on reverse charge basis for the GTA Services utilized by them during the period May 2013 to October 2013 - refund rejected on the ground that the products cleared by them are not in the category of food stuff and the refund claim is hit by ‘unjust enrichment clause’ - HELD THAT:- It is observed from the order passed by the lower Authorities that as submitted by the Learned Counsel they have not given proper consideration to the detailed certificate issued by the Chartered Accountant wherein he has clearly stated that (i) Cenvat Credit has not been taken by the Appellant (ii) The amount of refund claim filed, has been shown as amount receivable/dues from the Service Tax Department. When such an important document has been filed, the officials are required to give proper consideration for the same and give a clear finding as to why the same was not considered as proper evidence towards ‘unjust enrichment clause’. They have failed to do so. Coming to the argument of the Learned AR that the initial assessment was not disputed and the Appellant has not gone for re- assessment, in this case, this point will not arise. Here the Appellant is not service provider who has filed their self-assessment order under ST 3 Return. They are service recipients and are bound to pay the Service Tax on RCM basis. In the case of RCM, the recipient does not the assess the Service Tax component nor can he challenge the same by way of re-assessment. It is deemed fit to remand the matter to the Adjudicating Authority for the following limited purpose:- (i) The Appellant will produce the original copy of the Chartered Accountant’s Certificate dated 22/03/2014. They will also submit copies of their Balance Sheet from period 2010 to till the present financial year to substantiate their claim that this amount is still being shown as receivable/recoverable from the Service Tax Department. (ii) The Adjudicating Authority is directed of confine himself to examine these two aspects and pass a considered decision without rising any further issue on account of any other document. Appeal allowed by way of remand.
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