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2016 (4) TMI 410 - AT - Service TaxPeriod of limitation - Refund claim - First filed within a period of one year as per Section 11B of Central Excise Act, 1944 but was returned back for required documents and again filed by respondent after a period of one year - Held that:- from the Order-in-Original, it is observed that refund claim first filed was complete in all respects. The department was asking for proof of Service Tax paid by M/s. Indu APS CDS Synergy Drilling engaged by the Respondent . The documents being asked for were thus additional documents sought by Revenue to satisfy themselves that service provider has paid 100% Service Tax. Therefore, it cannot be said that required documents were not filed by the Respondent alongwith original refund application. Hence, refund claim was not time barred. Bar of unjust enrichment - no C.A. certificate was produced by the Respondent before the lower authorities - Held that:- the first appellate authority in Order-in-Appeal has held that Respondent herein has not taken CENVAT credit of 50% tax paid on reverse charge basis and has also shown this amount as advances in the books of account for which an affidavit is filed. It is observed from show cause notice that issue of unjust enrichment was nowhere the subject matter of show cause notice. However, in the Order-in-Original, Adjudicating authority discussed the issue of unjust enrichment at length and also made observations that Respondent herein did not produce any documentary evidence to the effect that burden of proof has not been passed on to any other person. In the interest of justice, on the issue of unjust enrichment the matter is required to be remanded back to the Adjudicating authority. Respondent should produce all the documentary evidences, including a C.A.'s certificate, before the Adjudicating authority to establish that refund sought for has not been recovered from any person and was shown in their books of accounts as an amount receivable and that the same has not been built into the expenditure of services being provided by Respondent. - Decided partly in favour of revenue
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