TMI Blog2018 (12) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... er receiving the order or after coming to know about the amalgamation has to be considered to be made within the time prescribed under section 11B of the Act - thus, the refund claim is not hit by time bar. Unjust enrichment - Held that:- The Tribunal in the case of Usha International Ltd. [2016 (3) TMI 205 - CESTAT NEW DELHI] after analyzing the issue held that the assessee is eligible for refund as the service was rendered to self and the burden cannot be passed on to one self. Further, in the case of M/s. Sescot Sheet Metal Works Ltd. Vs. Commissioner of Customs [2015 (4) TMI 386 - MADRAS HIGH COURT], the jurisdictional High Court held that the doctrine of unjust enrichment is inapplicable to the State (PSU), and therefore it cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound of time bar and also for the reason that the appellant had not produced any evidence to show that the incidence of tax paid has not been passed on to another. After due process of law, the original authority rejected the refund claim on the ground of time bar and unjust enrichment. In appeal, Commissioner (Appeals) upheld the same. Hence this appeal. 2. On behalf of the appellant, ld. counsel Shri M.N. Bharathi appeared and argued the matter. He submitted that the appellants were providing storage services to M/s. IBP Co. Ltd. Both these entities were amalgamated by an order passed by Ministry of Company Affairs dated 30.4.2007. In such order, it is specifically stated that the amalgamation is to take effect from 1.4.2004. The amalg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany Affairs for merger of both entities being 30.4.2007, the relevant date for reckoning the period of one year as per the provision of Section 11B would be the date of such order which is 30.4.2007. The appellants have filed the refund claim on14.3.2008 which is well within the time. Therefore, the rejection of refund claim on the ground of time-bar is erroneous. He relied upon the decisions in the following cases:- a. Indian Oil Corporation Ltd. Vs. Commissioner of Service Tax, Mumbai 2015 937) STR 575 (Tri. Mumbai) b. Commissioner of Central Excise, Trichy Vs. IOC Ltd. 2011 (23) STR 625 (Tri. Chennai) c. Commissioner of Service Tax, Delhi Vs. ITC Hotels Ltd. 2012 (27) STR 145 (Tri. Del.) 2.1 With regard to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this order it is specifically stated that the amalgamation is to take effect from1.4.2004. The relevant paragraph of the amalgamation scheme is reproduced as under:- 1. Para 27 of the above specifies the following:- Now, therefore, the sanction of the Central Government is hereby accorded to the Scheme (being Annexure A1 to the petition) of IBP (Transferor Company) with IOC (Transferee Company) under section 391(2) read with section 394 of the Act. The scheme shall be binding on the shareholders and creditors of the Transferor Company and Transferee Company and all concerned with effect from 1.4.2004 being the appointed date under the said scheme. 2. Part II of the Scheme of Amalgamation between IBP and IOC for which san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the decision in ITC Hotels Ltd. (supra). In the said case, the facts reveal that the service tax pertaining to refund was paid by the assessee for the period from 1.3.2007 to 31.8.2008. As a consequence of merger with effect from 1.4.2007, refund claims were filed. These were rejected by the authorities below on the ground that the assessee had not established that the incidence of duty was not passed on to another. Though the order of merger was passed High Court on 26.5.2008, the merger was to take effect from 1.4.2007. The Tribunal after analyzing the issue held that the assessee is eligible for refund as the service was rendered to self and the burden cannot be passed on to one self. Further, in the case of M/s. Sescot Sheet Metal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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