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2022 (9) TMI 392 - AT - Service TaxRefund of Service Tax - amount claimed to have been paid as pre-deposit - amount was paid under protest or not - appellant had passed on the duty element to the ultimate service recipients or not - principles of unjust enrichment - Section 11B of the Central Excise Act, 1944 - HELD THAT:- Higher courts have held that no tax shall be collected without the authority of law and, as a necessary corollary, the amount collected as tax without the authority of law shall be refunded. The liability to tax is determined after adjudication proceedings and the same is not an empty formality. So also, when a bona fide taxpayer remits tax, it is incumbent upon the Revenue to retain the tax as per law and if such remittance is found to be excessive, then that ‘excess’ being collected without the authority of law, shall have to be refunded. Strangely, the Adjudicating Authority having referred to the certificate issued by the Chartered Accountant, has not at all discussed anything about it and has proceeded to hold that the appellant had passed on the duty element to the ultimate service recipients and hence, there was unjust enrichment, which, according to me, is not in accordance with the requirement of law - The fact that the appellant claimed refund itself shows that the remittance which was subsequently claimed as refund was not paid in accordance with law and hence, the same would partake the character of an amount being paid under protest or the same being paid by mistake, which aspect has been considered in the above ruling of the Hon’ble jurisdictional High Court. The rejection orders of the lower authorities are not in accordance with law, which cannot therefore be sustained - Appeal allowed.
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