9911796707
TMI Blog2013 (8) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... . 7,02,131/- during the above period. During the course of EA-2000 audit of the appellant's unit, the officer pointed out that the activity of galvanising carried out by the appellant amounts to manufacture and they were required to pay Central Excise duty. Accordingly, the appellant paid Central Excise duty of Rs. 9,25,975/- and filed refund claim of service tax paid earlier. The service tax refund claim was sanctioned under OIO No. 378/ST/Refund/2011 dated 16.11.2011. Subsequently, the order passed by the Deputy Commissioner, Service Tax Division Rajkot was reviewed and an appeal was filed by the Revenue before the Commissioner (Appeals). Appellant also filed cross-objections dated 18.7.2012 before the Commissioner (Appeals) stating that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing both sides at length on the stay application, it transpired that the issue required to be deliberated upon is whether unjust enrichment and time-bar is applicable to the present refundl when the appellant has first paid tax under service tax and subsequently paid the Central Excise duty on the activities of Galvanising. Appellants have relied upon the judgment of Hon'ble High Court of Gujarat in the case of CC Patel and Associates Pvt. Limited vs. UOI (supra) and argued that unjust enrichment is not applicable to the present case. In this regards Para-15 of the Hon'ble High Court decision is relevant and reproduced below:- 15. A question of unjust enrichment is wholly irrelevant. It is not refund of a duty which is found upon comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en in that eventuality it has to be established that incidence of duty has not been passed on to others. It has been held that whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the requirement that the burden of duty has not been passed on to others. It was not submitted before us that this requirement had been fulfilled by the appellant. Thus looking from any angle, the appellant is not entitled to refund. 6. It is apparent from the law laid down by the Hon'ble Supreme Court in the case of SRF Limited (Supra) that even if a levy is considered of unconstitutional, still the refund claim is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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