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2019 (5) TMI 1026 - AT - Service TaxRecovery of refund already granted - Commissioner (appeals) had set aside the refund order - Principles of unjust enrichment - Refund of service tax paid - passing of refunds to the service recipient - incidence of tax borne by whom - unjust enrichment - Section 11B of the Central Excise Act, 1944 made applicable to Service Tax under Section 83 of the Finance Act, 1994 - HELD THAT:- Parliament has made a specific provision under Section 11B to ensure that the unjust enrichment does not take place by making a rebuttable presumption that the burden of tax has been passed on to the customer and hence the same needs to be credited to the consumer welfare fund. In this case, it is not in dispute that the burden has been passed on to the customer. The Assistant Commissioner, in his order-in-original, replaced this scheme provided for by the Parliament in Section 11B with his own scheme, viz., despite passing on the burden to the customers, refund will be granted and after taking the refund, you may return it to the customers within 30 days. There is clearly no provision for such a scheme and the Assistant Commissioner cannot arrogate to himself the powers of the Parliament and modify such a scheme. Correctly, the First Appellate Authority set aside such an order. However, he has not ordered recovery of the amount so refunded. Undisputedly, the appellant not only received the refund but also gave it back to the customers. Both sides agree that in this particular case, there is no net loss to the exchequer or gain to the appellant - appeal allowed.
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