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2019 (5) TMI 1026

pient - incidence of tax borne by whom - unjust enrichment - Section 11B of the Central Excise Act, 1944 made applicable to Service Tax under Section 83 of the Finance Act, 1994 - HELD THAT:- 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 custome .....

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id exemption had been withdrawn as a result the appellant is became liable to pay service tax on the works executed to the Government authorities under the category of Works contract Service (vide Notification No. 06/2016-ST dated 01.03.2015; Accordingly, the appellant collected the service tax from the Government authorities and deposited and also declared the same in the ST-3 returns for the period 2015-16; 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 acc .....

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OIO dated 28.11.2016, with the refund. Based on the above condition the Appellant submitted a letter dated 09.01.2017 along with detailed statement to the Assistant Commissioner of Service Tax Division-II of Service Tax Commissionerate, Hyderabad towards disbursement of refund of an mount of ₹ 9,60,67,682/- to the Government authorities i.e. service recipients; After submitting the proof of disbursement 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 a .....

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Section 102 of the Finance Act, 1994 prevails over the general provisions of Section 11B to the extent of inconsistency, i.e., to the extent of granting an extra window for filing the refund claim. However, the remaining part of Section 11B have not been modified. The form of applying for refund, the eligibility of refund on merits as well as the concept of unjust enrichment apply. There is no dispute 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 .....

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mburse the refunded amount to their customers, not done so. The modification of the scheme of ensuring that there is no unjust enrichment laid down in Section 11B if modified by the officers can have far reaching, disastrous consequences. 7. In this particular case, events have overtaken this appeal. Undisputedly, the appellant not only received the refund but also gave it back to the customers. Both sides agree that in this particular case, there is no net loss to the exchequer or gain to the appellant. In view of this, we allow the appeal setting aside the impugned order. We would like to make it clear that this is an exceptional case and cannot be precedent for any officer to modify the law or procedures laid down in the Act and Rules. ( .....

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