2016 (4) TMI 410

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... /Div./14 dated 27/3/14 passed by the Adjudicating authority and opined that refund claim of the Respondent herein is neither time barred nor hit by the doctrine of unjust enrichment. 2. Shri S.S. Chatterjee, Supdt. (A.R.) appearing on behalf of the Revenue argued that refund claim was first filed by the Respondent on 4/6/2013 which was within a period of one year as per Section 11B of the Central Excise Act, 1944 as made applicable. That the said refund claim was not accompanied by the required documents and was returned to the Respondent on 11/6/2013 and was again filed by the party on 23/10/2013 which was beyond a period of one year. Learned A.R. relied upon the following case law to argue that partys refund claim was time barred: (i) .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... basis was not included in the cost of services provided by them and was kept in the books of accounts as advances. That no CENVAT Credit was taken on this 50% Service Tax paid by the Respondent for which an affidavit was also filed before first appellate authority. 4. Heard both sides and perused the case records. The following two issues are required to be decided in this appeal filed by the Revenue: (i) Whether refund claim is time barred as per the provision of Section 11B of the Central Excise Act, 1944 ? (ii) Whether the doctrine of unjust enrichment is attracted in this case if refund is considered to be payable to the Respondent ? 5. On the issue of time bar, mentioned at para 4 (i) above, the case of the Revenue is that the ref .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... Excise Act, 1944. First appellate authority has thus correctly relied upon the case law in para 5 of Order-in-Appeal dated 13/11/2014 and held that refund claim of the Respondent was not time barred. 6. On the issue of unjust enrichment, mentioned at para 4 (iii) above, first appellate authority in para-7 of the Order-in-Appeal dated 13/11/2014 has held that Respondent herein has not taken CENVAT credit of 50% tax paid on reverse charge basis and has also shown this amount as advances in the books of account for which an affidavit is filed. It is observed from show cause notice dated 17/12/2013 that issue of unjust enrichment was nowhere the subject matter of show cause notice. However, in the Order-in-Original dated 27/3/2014 Adjudicating .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X