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2022 (11) TMI 150 - CESTAT NEW DELHIRejection of refund of penalty deposited, after passing of the order-in-original - short payment of service tax - case of appellant is that since they have deposited entire amount of service tax with interest before issuance of show cause notice, no show cause notice should have been issued to them in terms of provisions of Section 73(3) of the Finance Act, 1994 - applicability of principles of unjust enrichment - time limitation - HELD THAT:- It is held that, for refund of penalty, which has admittedly been deposited after passing of the order-in-original dated 26.03.2013, no limitation applies. Further, in the facts and circumstances, the provisions of unjust enrichment are not attracted as the burden of penalty is borne by the appellant and has not been passed on to their service receivers. Moreover, it is found that the refund arising pursuant to being successful in appeal, is available to an assessee under the provisions of Section 35 FF of the Central Excise Act. For this reason also, no limitation is applicable. The Adjudicating Authority is directed to grant refund of Rs.1,98,773/- with interest from the date of deposit till the date of refund - appeal allowed.
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