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2018 (4) TMI 667

ot payable? - Held that: - the respondent had made payment of service tax under an assumption that the respondent was liable to do so when there was no liability - the issue covered by the decision in the case of M/s Parijat Construction, M/s Giriraj Construction Versus Commissioner of Central Excise [2017 (10) TMI 659 - BOMBAY HIGH COURT], where it was held that the limitation prescribed under Section 11 B of the said Act to be not applicable to refund claims for service tax paid under a mistake of law. - Unjust enrichment - Held that: - the respondent had produced a Chartered Accountant's certificate indicating clearly that the amount of refund claim filed by them are reflected in the balance sheet as amounts receivable from the Cent .....

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ed 20/01/2013 was issued for demand of Central Excise duty, which was settled by the appellant before the Settlement Commission. Subsequently, they filed an application for refund on 18/64/2016 for the refund of service tax paid by them on the ground that they have paid the tax erroneously by mistake. The said refund claim was rejected by the adjudicating authority after following due process of law on the reasoning that the refund claim is barred by limitation and the doctrine of unjust enrichment is attracted. On appeal, the first appellate authority set aside the order-in-original and allowed the appeal. 4. Learned Authorised Representative after taking through the facts of the case, reads order-in-original and order-in-appeal and ground .....

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he amount collected as service tax by the Revenue authorities is without the authority of law and the limitation as prescribed under the provisions of Section 11B of the Central Excise Act, 1944 will not be applicable to such a situation. For this proposition he relies upon the decision of the Hon'ble High Court of Bombay in the case of Parijat Constructions v. Commissioner of Central Excise, Nashik [2017-TIOL-2170-HCMUM-ST]; In House Productions Limited v. Commissioner of Service Tax, Mumbai [2017-TIOL-1242-HC-MUM-CX] and unreported judgment in the case of Commissioner of Central Excise, Nagpur v. SGR infratech Limited in Central Excise Appeal No. 26 of 2014 decided on 28/10/2015. 7. On careful consideration of the submission I find th .....

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s (supra) an d In House Productions Ltd (supra) and SGR Infratech Ltd (supra) are directly on the point and covers the issue in favour of the respondent. 9. As regards the question of unjust enrichment it is recorded by the first appellate authority in the impugned order in paragraph No. 13 that the respondent had produced a Chartered Accountant's certificate indicating clearly that the amount of refund claim filed by them are reflected in the balance sheet as amounts receivable from the Central Excise department and they have not passed on the amount to their customers. Revenue authorities in the appeal memorandum did not effectively counter these findings of fact by the first appellate authority. In the absence of any contrary evidenc .....

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