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2019 (5) TMI 719

14 show that the amount under claim of refund has been treated as expense and thereby passed on the effect of the amount of service tax to their customers - HELD THAT:- In the present case, the Doctrine of Unjust Enrichment is not applicable because the Range Officer after verifying the records of the appellant has filed a report wherein he has categorically stated that the appellant has not collected the service tax from the service recipient and the aspect of unjust enrichment is absent in the present case. Further, the original authority as well as the appellate authority has come to the conclusion that since the appellant has shown the amount of refund as expenses in the Profit and Loss Account and thereby they have passed on to its cus .....

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re covered by Entry 54 and Entry 62 respectively of List II of the Seventh Schedule and (ii) that if any payments had been made by the petitioners on the basis of the impugned clauses, they were entitled to seek refund of the same. Accordingly, the appellant filed a refund claim of ₹ 16,43,224/- being the service tax paid for the services rendered during May 2011 to June 2012. The appeal filed by the Department against this was dismissed by the Division Bench of the Hon ble High Court of Kerala on 21/10/2014. Thereafter, the Department issued a show-cause notice dated 8.1.2014 to show-cause as to why refund claim should not be rejected. After following the due process, the Assistant Commissioner, Palakkad Division, sanctioned the refu .....

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verification of financial records for the financial year 2012-13 and 2013-14, the amount claimed as refund was not reflected as assets and has been shown as expenses in the Profit and Loss Account, whereas it should have been treated as amounts receivables in the balance sheet. He further submitted that the Range Officer has verified the records and has submitted its report to the adjudicating authority and has categorically stated that the appellant have not collected the service tax from the service recipient and the aspect of unjust enrichment is absent. He further submitted that identical issue has been examined by the Hon ble High Court of Madras in the case of CCE, Coimbatore vs. Flow Tec Power: 2006 (202) ELT 404 and has held that u .....

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) GSTL 218 (Tri.-Del.). 6. After considering the submissions of both the parties and perusal of the material on record, I find that in the present case the only question to the decided is whether the refund amount which is claimed by the appellant is hit by Doctrine of Unjust Enrichment or not. Further, I find that the appellant filed the refund claim after the decision of the Kerala High Court where the Hon ble Kerala High Court has held that levy of service tax on Restaurant Services and Short-term Accommodation Services was beyond the legislative competence of the Parliament as transaction is covered by Entry 54 of List 2 of Seventh Schedule to the Constitution of India. Further, I find that refund claim filed by the appellant was sancti .....

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