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2022 (9) TMI 744 - AT - Service TaxRefund of Service Tax - unjust enrichment - seeking refund to customers - rejection of service tax on the ground of time limitation and unjust enrichment - section 11B of the Central Excise Act, 1944 as made applicable by section 83 of the Finance Act, 1994 to Service Tax matters - HELD THAT:- The impugned order has partly sanctioned the refund and credited it to the consumer welfare fund and partly rejected on the ground of time bar. It is true that the law laid down by the Hon’ble Supreme Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [2019 (9) TMI 802 - SUPREME COURT], was that no refund to be sanctioned at all unless the assessments (including self assessments) are first assailed before the Commissioner (Appeals) and modified. However, the sanction of refund by the Commissioner (Appeals) has not been assailed by the Revenue either by an appeal or by a separate memorandum of cross objections. The refund claim can be made by the person who paid the excise duty or from whom the excise duty is collected and who has not passed on the incidence to any other person. Since these provisions are made applicable to the service tax by virtue of section 83 of the Finance Act, 1994, refund can also be claimed of service tax by the person who has either paid the service tax or the person from whom the service tax has been collected provided such person has not passed on the incidence to any other person. After examining the refund claim, if it is found admissible and if it is found to have been filed within time, the refund so sanctioned has to be credited to the consumer welfare fund. However, if the claimant proves that it has not passed on the burden to any other person then it shall be paid to the claimant - there is no provision, whatsoever, in section 11B by which one person who has paid the service tax and who has also passed on the burden to others, to file refund claim and request that the refund may be sanctioned and given to its customers. The scheme of the law is that once the applicant has passed on the burden of service tax to anybody, the amount has to be credited to the consumer welfare fund and not paid. The part of the refund claim was filed beyond a period of one year and hence was found to be inadmissible and was rejected by the Commissioner (Appeals) - there are no infirmity in the impugned order - appeal dismissed.
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