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2016 (3) TMI 205 - AT - Service TaxRefund claim - Service tax paid on royalty by the transferee company M/s Usha International Ltd. (UIL) to transferer company M/s Jay Engineering Works Ltd. (JEW) on the basis of the High Court order dated 26.5.2008 approving merger of the erstwhile UIL and M/s Shree Ram Fuel Injections Ltd. (SRFIL) with JEW with effect from 1.4.2007 - Registrar of Companies, National Capital Territory of Delhi & Haryana, Ministry of Company Affairs, approved its change of name of JEW to Usha International Ltd. from 20.6.2008 - Revenue contended that M/s JEW worked as an independent company up to 20.6.2008 and therefore service tax was payable and correctly paid by it - Held that: the appointed date as per amalgamation scheme i.e. 1.4.2007 is required to be the date of amalgamation/merger and not the date on which entire formalities were completed. Therefore, the service rendered during the period 1.4.2007 to 31.3.2008 became service to self and consequently service tax paid during the said period became eligible for refund. Refund claim - Doctrine of Unjust Enrichment - Appellant contended that it was neither a manufacturer of goods nor was it providing any service (which utilized the impugned service) during the relevant period and no Cenvat credit was taken of the service tax, the refund of which was sought and therefore the presumption contained under Section 12B of the Central Excise Act made applicable to Service Tax Act do not apply - Held that: every refund has to be tested on the yardstick of the doctrine of unjust enrichment in terms of Section 11B of Central Excise Act read with Section 83 of the Finance Act, 1994. Here as per Section 12B ibid the appellant do not cover within the scope of this section. The refund in this case is arising on account of the fact that the effective date of merger/amalgamation is to be treated as 1.4.2007 making service rendered during the relevant period for which royalty was paid as service to self. As the service was rendered to self and service tax was paid thereon, burden can only passed on to self and passing on the burden to self is not tantamount to passing it to any other person. Therefore, the appellant is not hit by the doctrine of unjust enrichment. - Decided in favour of appellant
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