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Commr. of Central Excise & Service Tax, Ranchi Versus M/s. Central Mine Planning & Design Institute Ltd.

2016 (4) TMI 410 - CESTAT KOLKATA

Period of limitation - Refund claim - First filed within a period of one year as per Section 11B of Central Excise Act, 1944 but was returned back for required documents and again filed by respondent after a period of one year - Held that:- from the Order-in-Original, it is observed that refund claim first filed was complete in all respects. The department was asking for proof of Service Tax paid by M/s. Indu APS CDS Synergy Drilling engaged by the Respondent . The documents being asked for were .....

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not taken CENVAT credit of 50% tax paid on reverse charge basis and has also shown this amount as advances in the books of account for which an affidavit is filed. It is observed from show cause notice that issue of unjust enrichment was nowhere the subject matter of show cause notice. However, in the Order-in-Original, Adjudicating authority discussed the issue of unjust enrichment at length and also made observations that Respondent herein did not produce any documentary evidence to the effect .....

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ot been built into the expenditure of services being provided by Respondent. - Decided partly in favour of revenue - Service Tax Appeal No. ST/75231/2015 - Order No. FO/A/75265/2016 - Dated:- 11-4-2016 - Sri H. K. Thakur , Technical Member For the Petitioner : Shri S. S. Chatterjee, Supdt. (A.R.) For the Respondent : Sri Adarsh Kr. Mayaramkar, C.A ORDER Per Sri H. K. Thakur This appeal has been filed by the Revenue against Order-in-Appeal No.127/RAN/2014 dated 13/12/2014 passed by Commissioner ( .....

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a period of one year as per Section 11B of the Central Excise Act, 1944 as made applicable. That the said refund claim was not accompanied by the required documents and was returned to the Respondent on 11/6/2013 and was again filed by the party on 23/10/2013 which was beyond a period of one year. Learned A.R. relied upon the following case law to argue that partys refund claim was time barred: (i) Everest Flavour Ltd. Vs. U.O.I. [2012 (282) ELT 481(Bom)] (ii) Cosmonaut Chemicals Vs. U.O.I. [2 .....

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ri A.K. Mayaramkar (C.A.) appearing on behalf of the Respondent argued that refund claim was timely filed on 4/6/2013 alongwith the essential duty paying documents. That after return of papers on 11/6/2013 again the refund claim was filed within one year alongwith additional documents desired by department. Learned C.A. made the bench go through para 3 on internal page 5 of the Order-in-Original dated 27/3/2014. It was his case that case laws on time barred now relied upon by Revenue are with re .....

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ts as advances. That no CENVAT Credit was taken on this 50% Service Tax paid by the Respondent for which an affidavit was also filed before first appellate authority. 4. Heard both sides and perused the case records. The following two issues are required to be decided in this appeal filed by the Revenue: (i) Whether refund claim is time barred as per the provision of Section 11B of the Central Excise Act, 1944 ? (ii) Whether the doctrine of unjust enrichment is attracted in this case if refund i .....

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e submitted while filing refund claim on 4/6/2013. It is observed from the case records that in para 3, on internal page 4 of the Order-in-Original dated 27/3/2014, it was stated by the Respondent that refund claim filed on 4/6/2013 was complete in all respects. It is also observed from last paragraphs on page 2 of the Order-in-Original dated 4/6/2013 that department was asking for proof of Service Tax paid by M/s. Indu APS CDS Synergy Drilling engaged by the Respondent . The documents being ask .....

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paid when no refund/rebate application was filed by the Appellants in those cases within the prescribe time specified in Section 11B of the Central Excise Act, 1944. First appellate authority has thus correctly relied upon the case law in para 5 of Order-in-Appeal dated 13/11/2014 and held that refund claim of the Respondent was not time barred. 6. On the issue of unjust enrichment, mentioned at para 4 (iii) above, first appellate authority in para-7 of the Order-in-Appeal dated 13/11/2014 has .....

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