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2022 (7) TMI 925 - AT - Service TaxRefund of service tax - principles of unjust enrichment - burden of tax passed on or not - appellate authority held that as the appellant had not paid any tax it could not claim refund and that there were no documents to support the fact that NBCC had not passed the burden of tax to any other person - HELD THAT:- It is an admitted fact that after the exemption notification was withdrawn on 01.04.2015, NBCC had paid its share of the service tax and deducted it while making payments to the appellant. Subsequently on 01.03.2016 the government restored the exemption where contracts were entered prior to 01.04.2015 as a result of which the tax deposited by NBCC, which had been deducted from the payments made to the appellant, became refundable. Initially the claim filed by NBCC was rejected for the reason that it had not borne the burden and the claim filed by the appellant has been rejected for the reason that only NBCC could have claimed refund and also on an account of unjust enrichment. It is an admitted fact that after the exemption notification was withdrawn on 01.04.2015, NBCC had paid its share of the service tax and deducted it while making payments to the appellant. Subsequently on 01.03.2016 the government restored the exemption where contracts were entered prior to 01.04.2015 as a result of which the tax deposited by NBCC, which had been deducted from the payments made to the appellant, became refundable. Initially the claim filed by NBCC was rejected for the reason that it had not borne the burden and the claim filed by the appellant has been rejected for the reason that only NBCC could have claimed refund and also on an account of unjust enrichment. The finding recorded in the impugned order while rejecting the refund claim filed by the appellant that only NBCC could have claimed refund is also erroneous for the reason that earlier the claim filed by the NBCC had been rejected for the reason that it had not borne the incidence of tax - appellant is, therefore, clearly entitled to refund of the service tax which was deducted from the payments made by NBCC to the appellant. Appeal allowed.
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