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2019 (3) TMI 49 - CESTAT HYDERABADRefund of service tax paid - Classification of services - site formation and clearance, excavation and earth moving and demolition services or not - doctrine of unjust enrichment - Section 11B of the Central Excise Act, 1944 - Held that:- The adjudicating authority as well as the first appellate authority have ventured beyond the period in question and have recorded that appellants have raised invoices relating to the period but nothing concrete has brought on record to show that the appellant had in fact collected the amounts of service tax for which he has filed the refund claim. We notice that the entire confusion is created by the adjudicating authority and the first appellate authority by considering the documents which were beyond the period in question for which the refund claim has been sought - The Chartered Accountant’s Certificate extract which is produced in the Order-in-Original is itself very specific that the certificate is for the period in dispute up to September, 2006 only. Further, we find that learned CA was correct in bringing to our notice that the ledger accounts of the customers in their accounts which are annexed from Page 57to 101 of the paper book indicates no recovery of service tax amount during the disputed period or subsequently also. If the debit notes are not acted upon and not recorded as receivables in the books of the appellant are not receiving any sum as service tax from the customers in any manner and hence it is to be held that service recipient has not paid the service tax element to the appellant. Therefore, doctrine of unjust enrichment is not attracted in this case. The department has not produced any evidence whatsoever that service tax has been paid by the service recipient and if so the mode of payment to appellant. Hence only on the basis of conjectures and premises the lower authorities have rejected the refund claim which in our view is incorrect and the statistics which are sought to be mentioned in the Order-in-Original by the adjudicating authority are irrelevant to the facts of the case it i.e., the refund claim is for a specific period i.e., 16.06.2005 to 30.09.2006. Appeal allowed - decided in favor of appellant.
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