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2017 (1) TMI 549

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..... und application before the authorities having jurisdiction over the service recipient or before the jurisdictional authorities of the service provider under Section 11B ibid. The excess paid service tax has been borne by the appellant and its incidence has not been passed on to any other person. Therefore, the legal presumption contained in Section 11B ibid has been rebutted in this case and the appellants refund claim is not hit by the doctrine of unjust enrichment. Appeal allowed - decided in favor of assessee. - ST/CROSS/4594/2012, ST/1805/2012-CU[DB] & ST/3853/2012-CU[DB] - 50025-50026/2017 - Dated:- 2-1-2017 - S. K. Mohanty, Member (Judicial) And Ashok K. Arya, Member (Technical) For the Appellant : Mr.B.L.Narasimhan, Advocate For the Respondent : Mr.Govind Dixit, D.R. ORDER Per S. K. Mohanty Brief facts of the case, leading to this appeal, are as under 1.1 The appellant is engaged inter alia,in the manufacture of fertilizers and is registered with both the Central Excise and Service Tax Department. The appellant receives services of transportation of natural gas through pipeline. The transportation charges of natural gas are regulated by the .....

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..... e that the refund claim of the appellant is barred by limitation of time, prescribed under section 11 B of the Central Excise Act, 1944; that chartered accountant certificate showing refund claim as receivable in the balance sheet is not sufficient to pass the test of unjust enrichment; that the appellant has not produced any evidence to show payment of alleged service tax by GAIL in the Government Account; that the reduction in transportation charges is a matter between GAIL and the appellant and the same has no relation with reduction of service tax liability. Against the impugned order dated 27.03.2012, the appellant has preferred appeal before this Tribunal, which was listed as Appeal No. ST/1805/2012. 2. Shri B.L Narshiman, the ld. Advocate appearing for the appellant submitted that a service recipient is entitled to claim refund of service tax under Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 in view of the fact that the statute empowers any personto claim refund of duty/tax. In this context, the ld. Advocate has relied on the judgment of Honble Allahabad High Court in the case of Commissioner vs. Indian Farmers Fertilizers .....

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..... lls, 2015 (321) ELT 295 (Tri.-Del.) and Eveready Industries India - Vs. - Commissioner, 2015 (323) ELT 612 (Tri.-Del.). 3. On the other hand, Shri Govind Dixit, the ld. A.R. appearing for the Revenue reiterated the findings recorded in the impugned order and further submits that the test of unjust enrichment has not been satisfactorily discharged by the appellant, and thus, the refund application is not maintainable. 4. Heard both sides and perused the records. 5. The applicability of Section 11B ibid for claiming refund of Central Excise duty/Service Tax is not restricted only to manufacturer/service provider. The said statutory provision mandate that any person can claim refund, subject to the conditions that the tax/duty was collected from or paid by him; and the incidence of such tax/duty had not been passed on by him to any other person. Thus, in absence on any stipulation contained in the statutory provisions, the service recipient is well entitled to claim refund of service tax paid by him to the service provider. With regard to the issue, as to whether, the service recipient can claim refund of service tax, the Hon'ble Allahabad High Court, in the case of Ind .....

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..... having jurisdiction over the service recipient or before the jurisdictional authorities of the service provider under Section 11B ibid. The provisions of Section 11B ibid are explicit to provide that such recipient-claimant is only required to prove that the tax amount was collected from him. In the instant case, it is evident from the invoices that GAIL had charged service tax from the appellant at the provisional price, which was at the higher side and upon finalization of the price, had issued the credit notes for the differential price. It is also evident from the records that GAIL had deposited the service tax, collected from the appellant into the Government exchequer and had not refunded the service tax on account of price revision to the appellant and requested the Department to process the refund claims filed by the service recipients. In this context, the letter dated 26.11.2010 addressed by GAIL to the Range Superintendent, Guna, M.P. is useful, and the relevant portions therein are extracted below:- 6. We enclose herewith at Annexure-B, a summary listing of the credit notes issued by GAIL to customers. We wish to draw to your kind attention to the fact that these c .....

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