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2019 (5) TMI 1026

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..... same needs to be credited to the consumer welfare fund. In this case, it is not in dispute that the burden has been passed on to the customer. The Assistant Commissioner, in his order-in-original, replaced this scheme provided for by the Parliament in Section 11B with his own scheme, viz., despite passing on the burden to the customers, refund will be granted and after taking the refund, you may return it to the customers within 30 days. There is clearly no provision for such a scheme and the Assistant Commissioner cannot arrogate to himself the powers of the Parliament and modify such a scheme. Correctly, the First Appellate Authority set aside such an order. However, he has not ordered recovery of the amount so refunded. Undisputedly, th .....

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..... 15-16; However, the Budget-2016 the Government had restored the exemption to the works contract services rendered to the Government authorities with retrospective effect i.e. from 2015-16; (vide Notification No. 9/2016-ST dated 01.03.2016); Accordingly, special provisions Section 102 of Finance Act 2016 are inserted in the Finance Act; In according to the Special Provisions of Section 102 of Finance Act, 2016 the exemption of service tax to the service provider under the category of Works Contract Services for the works executed to the Government Authorities by way of refund within 6 months from the date of enactment of Finance Act, 2016; The appellant filed a refund application under Section 11B of the Central Excise Act, 1944 made applica .....

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..... rsement of refund amount to the Government authorities by the appellant, the revenue reviewed the OIO dated 28.11.2016 and filed an appeal before the Commissioner (Appeals-II) Hyderabad on the ground that the Assistant Commissioner has not considered the unjust enrichment clause, in its letter and spirit. The appeal filed by the revenue was allowed and the Commissioner (Appeals) set aside the OIO dated 28.11.2016. 2. Aggrieved with the Commissioner (Appeals-II) OIA No HYD-SVTAX-000-APP-0150-17-18 ST dated 27.07.2017, appellant filed an appeal before the CESTAT with a prayer to consider the following grounds: 1. The refund application under Section 11B of Central Excise Act, 1944 made applicable to Service Tax under Section 83 of the Finance .....

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..... regarding the merits or the time limit. The only dispute is regarding the provisions of unjust enrichment. Parliament has made a specific provision under Section 11B to ensure that the unjust enrichment does not take place by making a rebuttable presumption that the burden of tax has been passed on to the customer and hence the same needs to be credited to the consumer welfare fund. In this case, it is not in dispute that the burden has been passed on to the customer. The Assistant Commissioner, in his order-in-original, replaced this scheme provided for by the Parliament in Section 11B with his own scheme, viz., despite passing on the burden to the customers, refund will be granted and after taking the refund, you may return it to the cust .....

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