TMI Blog2009 (11) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... e, we find that the impugned order before us is incorrect and is not sustainable. The impugned order is set aside and appeal allowed with consequential relief if any. - ST/41 OF 2006 - 1453 OF 2009 - Dated:- 17-11-2009 - M.V. RAVINDRAN, JUDICIAL MEMBER P. KARTHIKEYAN, TECHNICAL MEMBER G.P. Shastry for the Appellant. M. Ravi Rajendran for the Respondent. ORDER M.V. Ravindran, Judicial Member - This appeal is directed against Order-in-Revision No. S.Tax/01/2006 (Commr.), dated 5-1-2006. 2. The relevant facts that arise for consideration are : The assessees have filed a refund claim for Rs. 1,18,762 on 12-8-2004 in terms of the provisions of section 11B of Central Excise Act, 1944 seeking refund of Service Tax paid by them fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under service tax net. 4. The refund claim as filed by the appellant was subjected to verification and on verification it was sanctioned and the appellant was given a refund of Rs. 1,09,820. The said order-in-original was reviewed by the Commissioner of Central Excise and it was taken up for further revision under section 84 of the Finance Act. After hearing the appellant, the learned Commissioner came to the conclusion that the order-in-original had sanctioned refund to the appellant incorrectly and coming to such a conclusion, he set aside the same. Hence this appeal. 5. Learned counsel submits that the Commissioner as a reviewing authority has not considered the facts of the case properly. He would draw our attention to the finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the customers and thus they are not entitled to refund claim on the grounds of unjust enrichment, which is a prerequisite for sanction of such refund amounts as is required under section 11D of the Central Excise Act, 1944, read with section 83 of the Finance Act, 1994." It can be seen from the above reproduced portion that the reviewing authority has only made passing remarks of non-passing of incidence of service tax. On the other hand we find that the adjudicating authority while sanctioning the refund claim has recorded the following :— "The refund claim has been scrutinized in the light of the provisions of section 11B of Central Excise Act, 1944 as made applicable to Service Tax by virtue of section 3 of the Finance Act, 1994. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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