TMI Blog2020 (9) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... he nature of deposit and not service tax. Even if the payment is in the nature of service tax, the date of cancellation of flat will be considered as the relevant date for calculating the time limit of one year, as the event that led to the refund of taxes is the cancellation by the buyer. If the cancellation would not have happened, the refund claim would not have arisen at all. Doctrine of Unjust Enrichment - HELD THAT:- Appellant is the customer who had booked the flat, It is on record that the component of Service Tax was recovered from him by the builder and paid to the exchequer. It is also on record that the builder has not refunded Service Tax to the appellant. It is therefore clear that appellant has borne the incidence of Service Tax whose refund is being claimed, It is crystal clear that the claim is not hit by the doctrine of unjust enrichment. Appeal allowed - decided in favor of appellant. - NA/GST/A-III/MUM/84/2020-21 - - - Dated:- 25-8-2020 - NASIM ARSHI, COMMISSIONER (APPEALS-III) The subject Service Tax appeal has been filed by Mr. Haresh V Kagrana (HUF) having address at 304, Shalaka, Near Mayur Hotel, Juhu Road, Santacruz (W), Mumbai- 400 054 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of service. ii. Section 142 (5) of CGST Act, 2017 is identical to Rule 6(3) of Service Tax Rules, 1994 and the refund cannot be rejected on the ground no time limit was prescribed under the service tax laws for return of tax on services not provided under the provisions of Rule 6(3) of service Tax Rules, 1994. iii. Without prejudice to the above, the time limit under Section 11B is required to be computed from the date of cause of action and not from the date of payment. iv- Doctrine of unjust enrichment is not applicable in the present case. 4.1. The appellant relied on the following case laws: i. Mercedes Benz (I) Pvt. Ltd., 2018 (11) G.S.T.L. 389 (Tri.Mumbai) ii. Torque Pharmaceuticals Pvt. Ltd. 2014 (33) S.T.R. 331 (Tri. Del.) iii. Sunrays Engineers Pvt. Ltd. 2015 (318) E.L.T.583 (S.C.) iv. M/s Akash The Place To celebrate 2013(31) S.T.R. 251 (Tri. Ahmd.) v. M/s Central Mine Planning and Design Institute Ltd. 2014 (36) S.T.R. 328 ( Tri. Del.) 5. Various opportunities of Personal hearing were granted viz on 25.02.2020, 11.03.2020, 23.03.2020, 17.06.2020, 15.07.2020 and 05.08.2020. Personal hearing was held on 05.08.2020 which was attended by M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Bharat Infrastructure Engineering Pvt. Ltd. wherein the builders have confirmed that they had collected and paid service tax amounting to ₹ 1,90,313/- to the Government on booking of their flat and that they had refunded the entire advance excluding the service tax component. In the additional submission made dtd. 10.08.2020 the appellant had submitted Indemnity / Declaration and CA certificate from builder. They further confirmed that the service tax paid by them corresponding to the cancelled contract has not been adjusted against any future Service Tax/GST liability in accordance with Rule 6(3) of STR or any other manner, The same has also been certified by the Chartered Accountants Kagrana Associates . The appellant further submitted a certificate from Kagrana Associates, Chartered Accountants certifying that M/s. Bharat Infrastructure Engineering Pvt Ltd., had collected and deposited the service tax on the flat booked by Mr. Haresh Kagrana amounting to ₹ 1,19,313/- to the Government vide challan No.000014 dated 16.01.2016 and had also shown the same in the Service tax return filed for the period Oct. 2015 to March,2016. 9. The AA found that Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars and the bookings can be cancelled by the buyers before taking possession of the flat. The Same has occurred in this case. I find that no service has been provided to the appellant in this case as the consideration for service was returned and the service contract got terminated. Once it is clear that service is not provided, refund under Section 142(5) of the CGST Act, 2017 becomes admissible. 11. In this regard it would be pertinent to refer to the latest FAQ issued on Banking, Insurance and Stock Brokers Sector (Updated as on 27.12.2018) by CBIC, wherein vide question no, 71, it has been specifically clarified that any service paid on or before 30 June 2017 for the services to be provided but subsequently not provided shall be eligible to claim refund under Section 142(5) of CGST Act, 2017. The said FAQ reads as under: 71 When service tax was paid on or before 30 th June, 2017 for the services to be provided, but subsequently not provided, whether refund claim can be made under Section 142(5) of the CGST Act? Section 142(5) of the CGST Act, 2017 specifically provides for refund of tax paid under the Finance Act, 1994 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factory - Claim for refund of excess duty filed by assessee after reversal of excess credit of duty by customer - HELD : Date of reversal of credit by customer should be considered as date of payment of duty giving rise to cause of action - Payment of duty by assessee did not give rise to any cause of action and that date was irrelevant - Impugned order holding refund as eligible, upheld - Section 11B of Central Excise Act, 1944. [para 5] (ii) SS Agro Industries Vs C. Cus., Air cargo (Export), New Delhi (2014 (309) E.L.T. 334 (Tri-Delhi)] it was held that: Refund of bank guarantee - Limitation - Refund arising out of encashment of bank guarantee by Revenue on 21-3-2006 for non-fulfilment of export obligation, cancelled subsequently on 26-6-2010 on completion of said export obligations - HELD : Identical issue decided in case of Stalwart Electroplating Works [2010 (252) E.L.T. 380 (Tri.-Del.)] wherein held that encashment of bank guarantee cannot be treated as duty payment and as such, limitation provision will not apply - In instant case, assessee could claim refund of encashed bank guarantee only after fulfilment of export obligations and as such relevant date for refund o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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