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2020 (9) TMI 425 - Commissioner - GSTRefund of Service Tax - cancellation of booking of flat - denial on the ground that the assessment was final and not provisional - doctrine of unjust enrichment - HELD THAT:- It is important that Section 142(5) provides that any amount eventually accruing shall be paid in cash. I further find that the clause notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act, 1944 is extremely crucial. It free such claims from the fetters of limitation Ich is provided under sub-Section (1) of Section 11B. The only thing that is not overridden is the requirement of fulfillnent of unjust enrichment clause as provided under sub-Section (2) of Section 11B. No service has been provided to the appellant in this case and therefore the provision of relevant date of one year and date of payment of payment as per Section 11B of CEA cannot be made applicable in the present case. The service tax paid by the appellant is in the nature of deposit and not service tax. Even if the payment is in the nature of service tax, the date of cancellation of flat will be considered as the relevant date for calculating the time limit of one year, as the event that led to the refund of taxes is the cancellation by the buyer. If the cancellation would not have happened, the refund claim would not have arisen at all. Doctrine of Unjust Enrichment - HELD THAT:- Appellant is the customer who had booked the flat, It is on record that the component of Service Tax was recovered from him by the builder and paid to the exchequer. It is also on record that the builder has not refunded Service Tax to the appellant. It is therefore clear that appellant has borne the incidence of Service Tax whose refund is being claimed, It is crystal clear that the claim is not hit by the doctrine of unjust enrichment. Appeal allowed - decided in favor of appellant.
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