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TMI Blog2013 (1) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944, refund claim has to be filed within one year from the relevant date. Section 11B provides that if the duty is paid under protest, then the date relevant to be the date when the dispute is settled. Therefore, relevant date is 27.8.2010 and the appellant has filed the refund claim within one year from the relevant date. Therefore, it is held that refund claim is within time – In favour of assessee Unjust enrichment – Amount of service tax in interest - Amount of finance is added by interest and divided by the period thereafter the installment comes – Held that:- Service tax element is nowhere mentioned in the instalment, the same has been confirmed by the C.A after verifying the records. Although the appellant paid the service tax to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority to consider the refund claim of the appellant. The adjudicating authority rejected the refund claim being time barred for Rs. 5,64,818/- and a sum of Rs.13,306/- on account of unjust enrichment. The said order was challenged before the Commissioner (Appeals) who confirmed the adjudicating authority's order. Against the said order the present appeal is before me. 3. Ld. Counsel for the appellants submits that whether they are liable to pay service tax or not has been settled by the lower Appellate Authority vide his order dated 27.8.2010 and they have filed refund claim on 22.9.2010, which is within the period of limitation of one year from the relevant date when the issue of liability of service tax has been settled. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Hon'ble High Court of Delhi in the case of Jumax Foam Pvt Ltd Vs. Union of India reported in 2003 (157) ELT 252 (Del) wherein the Hon'ble High Court held that refund claim is to be filed within the prescribed period of limitation. On the issue of unjust enrichment, he submitted that the appellants themselves paid the service tax as cum-service tax on the instalment received from their clients. Therefore, the bar of unjust enrichment is applicable to the facts of the case and in support of his contention he further relied on the following decisions: 1. Commissioner of C. Excise, Madurai Vs. Sundaram Industries Ltd. 2011(263) ELT 615 (Tri.Chen) 2. Commissioner of Customs (Prev), Jamnagar Vs. Continental Petroleums. Ltd. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n time. 8. As regards the issue on unjust enrichment, it is explained by the appellant in the calculation made by themselves that the amount of finance is added by interest and divided by the period thereafter the instalment comes. Service tax element is nowhere mentioned in the instalment, the same has been confirmed by the Chartered Accountant after verifying the records. Although the appellant paid the service tax to the department by calculating the instalment as cum-service tax, but it does mean that they have collected / included the service tax amount in their instalment. They have also explained that the instalment is only principal plus interest divided by period. In that view of the fact, the case laws relied upon by the ld. DR ..... X X X X Extracts X X X X X X X X Extracts X X X X
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