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2018 (4) TMI 666

d 07/07/2009 - Held that: - Hon'ble High Court of Gujarat in a similar situation in the case of Commissioner of Central Excise& Customs, Swat -1 V. ABG Shipyard Ltd [2013 (9) TMI 741 - GUJARAT HIGH COURT] had clearly ruled that non declaration of the commission amount on the shipping bill is a procedural lapse, when the amount of commission paid is not disputed and the service tax liability on that is also discharged - appeal dismissed - decided against Revenue. - ST/89502/2013 - 85627/2018 - Dated:- 12-3-2018 - Shri M.V. Ravindran, Member (Judicial) Shri Atul Sharma, Assistant Commissioner (AR) for appellant Shri B Gaikwad, Advocate for respondent This appeal is filed by Revenue against Order-in-Appeal No: PUN-EXCUS-002-APP-081-13-14 dated .....

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cation are not met. 6. It is the submission of the Learned Authorised Representative as well as the grounds of appeal, that statutory benefit available under the notification has to be availed in the legitimate manner after observing the stipulations or conditions. The provisions cast obligation on the person claiming refund to evidence that the incidence of duty has not been passed on to any other persons and in the case in hand, the hurdle of unjust enrichment had not been passed. For such proposition, reliance is placed on the judgment of the Supreme Court in the case of Sahakari Khand Udyog Ltd v. Commissioner of Central Excise & Customs [2005 (181) E.L.T 328 (SC)] and judgement of Hon'ble Bombay High Court in the Weston Coalfie .....

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served that the Appellants despite having the option to avail exemption under the subject notification, due to oversight paid the service tax on the commission paid to their foreign commission agent. On realizing this mistake they filed the instant refund claim for the wrongly paid service tax. In this context, I find that the Adjudicating authority has observed that due to nonfulfillment of the conditions of the Notification dated 07.07.2009, the benefit of the exemption is not available to the Appellants. Thus the Adjudicating authority has held that the service tax paid in this respect cannot be considered as wrongly paid, and therefore the service tax amount is not eligible for refund. In the instant case there is no dispute about the e .....

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one the decision of the Adjudicating Authority to reject the refund claim shall be quashed. 8. Further, I observe that the refund claim has been rejected considering the same to be hit by the bar of unjust enrichment. It is a settled principle that in respect of export of goods and export of services the provisions relating to unjust enrichment are not applicable. The view has been reinforced by the Hon'ble CESTAT in the case of Commissioner vs S. Mohanlal Services - 2010(18) S.T.R. 149 (Tri Ahmd). On this ground also, the Appellants are eligible for the refund. Therefore, I do not agree with the Adjudicating Authority's stand that the refund claim is hit by the bar of unjust enrichment.' 9. I also find that the Hon'ble High .....

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