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2015 (9) TMI 585 - AT - Service TaxDenial of refund claim - Unjust enrichment - Onus to prove - Held that - Appellant had filed refund claim claiming it to be consequent upon the CESTATs Final Order 2008 (7) TMI 47 - CESTAT, NEW DELHI . We find that the Commissioner (Appeals) has given clear finding that amount of refund claim is in respect of service tax which has been recovered from the customer namely M/s. J.P. Cement, Rewa and M/s. J.P. Cement has taken cenvat credit of the said service tax and utilized for payment of Central Excise Duty on its finished products and therefore the refund claim is hit by the doctrine of unjust enrichment under section 11B of Central Excise Act, 1944 made applicable to the service Tax matters by virtue of section 83 of the Finance Act, 1994. It is pertinent to mention that the onus is on the appellant to establish that the burden of service tax for which refund is claimed had not been passed on to others and that onus has clearly not been discharged by the appellant. - Decided against assessee.
Issues involved: Appeal against rejection of refund claim based on unjust enrichment doctrine under section 11B of Central Excise Act, 1944.
Analysis: 1. Representation and Adjournment: The judgment notes the absence of the appellant during the hearing despite prior notices and adjournments. The learned DR emphasized deciding the issue on merit without further delays, which was agreed upon by the Tribunal. 2. Refund Claim Basis: The appellant filed a refund claim following a CESTAT Final Order dated 7.7.2008. However, the Commissioner (Appeals) found that the refund claim amount pertained to service tax recovered from the customer, M/s. J.P. Cement, who utilized cenvat credit for Central Excise Duty payment on finished products. This situation triggered the doctrine of unjust enrichment under section 11B of the Central Excise Act, 1944, extended to service tax matters by section 83 of the Finance Act, 1994. 3. Doctrine of Unjust Enrichment: The Tribunal highlighted that the appellant failed to establish that the burden of the service tax, subject to the refund claim, was not transferred to others. The judgment emphasized that the onus to prove non-passing of the tax burden rested on the appellant, which was not fulfilled in this case. Consequently, the Tribunal found no merit in the appeal and dismissed it accordingly.
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