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TMI Blog2019 (2) TMI 1424X X X X Extracts X X X X X X X X Extracts X X X X ..... nt realised that such payment of Service Tax was erroneously made and sought for refund on 22.04.2009 for an amount of Rs. 23,86,416/- which was recalculated as Rs. 19,66,794/- along with copies of relevant documents but was issued with show-cause notice dated 23.12.2010 as to why such refund was not to be rejected. Matter was adjudicated, refund was refused but subsequently allowed by the Commissioner (Appeals) before whom appellant challenge the adjudication order. The relevant extract of the order of Commissioner (Appeals), Service Tax-II, Mumbai at para 13 & 20 reads as follows:- "13. From the foregoing, I find that the appellant is eligible for the amount of refund of Service Tax paid on the commission received by him from the foreign suppliers. Holding so, I set aside the impugned orders. At the same time, the procedural aspect of filling the declaration and granting the refund to the appellant needs to be done. Accordingly I direct the appellant to file the declaration as required under Notification No. 12/2005 read with Export of Services Rules, 2005 before the Adjudicating Authority and the Adjudicating Authority on receipt of such declaration, will process refund claims. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice Tax liability to be discharged by them under reverse charge and paid the said Service Tax amount from the actual service commission received by them. I find that once the invoice or bill has been drawn, it is sufficient to presume that the incidence of duty/service tax has been passed on. Further there is no provision in the law for the actual realization. For this proposition, I rely on the decision of Hon'ble Tribunal in case of M/s Mukand Ltd. Vs. CCE, Mumbai-VI reported in 2004-TIOL-1166-CESTAT-Mumbai. The Tribunal further in para 3 & 4 held that - "3. .......... once the invoice or bill has been drawn, it is sufficient to presume that the incidence of duty/service tax has been passed on .................... 4. Therefore, I do not find any substance in the argument of the ld. Counsel that there was no actual receipt of the Service Tax by the appellant. I find no merits in the appeal filed by the appellant and the same is accordingly, dismissed." (v) From the above Tribunal order, I find that the actual receipt of Service Tax amount is not necessary. In view of the above, I hold that the amount received by the claimant from the foreign customer is inclusive of Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by the claimant qualify as export of service. They have fulfilled the procedural aspect for claiming the rebate under Notification No. 11/2005-ST dated 19.04.2005. However, the claimant has failed the test of doctrine of unjust enrichment in the instant refund claim, as the incidence of duty has already been passed to the clients/third party." 4. Being aggrieved by the above rejection order, appellant preferred on appeal before the Commissioner (Appeals) and as the same yielded no fruitful result, it has approach this Tribunal seeking relief in this second round of litigation. 5. In the memo of appeal and during the course of hearing of the appeal, learned Counsel for the appellant Mr. K.A. Photographer, Associate Vice President, apart from arguing on the merit of the case, pleaded that provisions of unjust enrichment do not apply to export of services and the Service Tax was paid erroneously after deducting the tax component from the whole of commission amount received by the appellant and for the purpose of calculation only, they prepared invoice in the ERP system, with bifurcation of tax component but going by the Service Commission Agreement, annexed at page 130 & 131 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant had submitted declaration in compliance to Notification No. 11/2005 read with Export of Service Rules, 2005 to the Adjudicating Authority and also made an alternative prayer in the grounds of appeal. In the first round of litigation, which was not made before the Commissioner (Appeals) at the first instance who passed order in favour of the appellant, the test of unjust enrichment was asked to be decided by the Refund Sanctioning Authority. This being so, rejection of refund is solely confined to the dispute concerning applicability of doctrine of unjust enrichment to the appellant, since claim of refund was allowed to it and the same attained finality being unchallenged by the respondent department. Therefore, determination of such an issue is well within the jurisdiction of this Tribunal for which hearing had been rightly preceded. 8. The test of unjust enrichment, in its limited applicability, is confined to the consideration as to who had borne the incidence of tax? If it is borne by the appellant and not passed on to any other person, then appellant cannot be regarded as being enriched with the refund of such tax component borne by any other person. In the instant ..... 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