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2023 (7) TMI 884 - AT - Service TaxRefund of service tax paid - rejection on the ground that the appellant have not been able to establish that the burden to tax paid has not been passed on to the service recipient - principles of unjust enrichment - HELD THAT:- The rejection of the refund claim on the ground of unjust enrichment is improper as per the provisions of Section 11B (2) itself - every determination under section 11 B should first determine the admissibility of the refund claim, and there after examine the applicability of the proviso, i.e. the exception in which the refund amount should be paid to the claimant and if the case is not covered by the exception specified by the proviso, the amount of refund determined has to be credited to the fund. Unjust enrichment - HELD THAT:- No ground has been taken by the Revenue in the show cause notice. Even during the course of hearing Authorised Representative appearing for the Revenue was unable to point out any such ground taken in the show cause notice and for production and giving opportunity to the appellant for production of the document to substantiate his claim on not passing the burden to the ultimate service recipient. The Chartered Accountant certificate has been rejected stating that it is only a secondary evidence. In the absence of any such ground in the show cause notice and opportunity to the appellant to substantiate his claim on the ground of unjust enrichment this portion of order cannot survive - no proper examination of any of the document by which appellant would have substantiate his claim for not having passed the burden on the tax paid to the service recipient has been undertaken by either of the authorities. To give fair opportunities to both the sides this matter on this ground needs to be remanded back to the Original Authority. Appeal is allowed by way of remand - Matter is remanded to the Original Authority for a decision within three months from the date of receipt of this order.
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