TMI Blog2009 (10) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... nts had claimed a refund of Rs. 1,75,142 paid by them as a receiver of service. This is a second round of litigation. In first round of litigation, the matter had reached the Tribunal and the matter was remanded to the Original Adjudicating Authority to consider applicability of doctrine of unjust enrichment. The Original Adjudicating Authority held that refund is hit by unjust enrichment and credited the refund amount to the consumer welfare fund. On an appeal, filed by the appellants, the Commissioner (Appeals) allowed the appeal. 2. The learned advocate on behalf of the appellants submitted that in this case for the service received in April, 2005, June 2005 and August, 2005, the tax was paid only on 10-4-2006 and 10-5-2006. By the tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e invoices raised by the appellants, respective bank's remittance certificates, copies of communication from their overseas clients, their working of service tax liability and a certificate from chartered accountant lead to an inference that the appellants have not charged any service tax from their clients and the same had been borne by them. The appellants had calculated their service tax liability on the gross amount received, which is also evident that they did not charge any service tax and total receipt was not considered as cumtax receipts. The copies of the balance sheet and profit and loss account of the appellants for the years 2005-06 and 2006-07 furnished by them and showing service tax paid by them as an expense also indicates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly which means that the appellant was not aware of liability at the time of receipt of service. Further, the refund claim has been made under section 11B of the Central Excise Act, 1944 made applicable for service tax matters. Section 11B provides that where the amount is reliable to rebate of duty of excise on excisable goods exported out of India, the amount shall be paid to the claimant. This means that provisions relating to unjust enrichment are not applicable in respect of export of service. In this case also the refund claim has arisen as a result of export of services. On this ground also, the appellants are eligible for the refund. In view of the above discussion, I do not find any merits in the appeal filed by the Revenue and ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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