9911796707
TMI Blog2022 (9) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... the advances received during pre G.S.T. regime and it was the case of the appellant that upon introduction of G.S.T., they had discharged their entire G.S.T. liability including such advances for which even Service Tax was remitted under the old regime and hence, refund of Service Tax paid under the old regime was claimed. 3. A Show Cause Notice dated 20.11.2020 was issued to the appellant proposing to reject the refund claim on the grounds that the appellant had not fulfilled the conditions laid down under Section 11B of the Central Excise Act, 1944 and that the appellant had not furnished any evidence to substantiate that the incidence of duty was not passed on to the recipients of service (paragraph 6 of the Show Cause Notice). The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt upon the Revenue to retain the tax as per law and if such remittance is found to be excessive, then that 'excess' being collected without the authority of law, shall have to be refunded. From the orders of both the lower authorities, I do not find any whisper about the authority to retain the tax paid on advance, since after the introduction of G.S.T., tax under the new regime was paid in full, which fact also stands undisputed. 8. Strangely, the Adjudicating Authority having referred to the certificate issued by the Chartered Accountant, has not at all discussed anything about it and has proceeded to hold that the appellant had passed on the duty element to the ultimate service recipients and hence, there was unjust enrichment, which, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, and therefore we have no hesitation in holding that the claim of the Assessee for a sum of Rs. 4,39,683/- cannot be barred by limitation, and ought to be refunded. 14. There is no doubt in our minds, that if the Revenue is allowed to keep the excess service tax paid, it would not be proper, and against the tenets of Article 265 of the Constitution of India. On the facts and circumstances of this case, we deem it appropriate to pass the following directions :- (a) The Application under Section 11B cannot be rejected on the ground that is barred by limitation, provided for under Section. (b) The claim for return of money must be considered by the authorities." 10. The fact that the appellant claimed refund itself shows that the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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