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TMI Blog2022 (9) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... um of cross objections. The refund claim can be made by the person who paid the excise duty or from whom the excise duty is collected and who has not passed on the incidence to any other person. Since these provisions are made applicable to the service tax by virtue of section 83 of the Finance Act, 1994, refund can also be claimed of service tax by the person who has either paid the service tax or the person from whom the service tax has been collected provided such person has not passed on the incidence to any other person. After examining the refund claim, if it is found admissible and if it is found to have been filed within time, the refund so sanctioned has to be credited to the consumer welfare fund. However, if the claimant proves that it has not passed on the burden to any other person then it shall be paid to the claimant - there is no provision, whatsoever, in section 11B by which one person who has paid the service tax and who has also passed on the burden to others, to file refund claim and request that the refund may be sanctioned and given to its customers. The scheme of the law is that once the applicant has passed on the burden of service tax to anybody, the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd has submitted the requisite enclosures. Further, it has filed refund claim well within time. Further, the appellant stated that clause of unjust enrichment is not applicable, as the incidence was not passed on to any customer. It further requested that the refund claim may be directly paid to its customers. After following due process, the Assistant Commissioner has by Order dt.28.01.2010 rejected the refund claim filed by the appellant. 3. Aggrieved, the appellant filed an appeal before the Commissioner (Appeals) who, by Order-in-Appeal dt.02.09.2010 (impugned order), found that out of the claim of Rs.1,04,66,929/-, an amount of Rs.10,52,220/- was eligible for refund as the claim was made within the period of limitation of one year, and directed the same to be credited to the consumer welfare fund under section 12C of the Central Excise Act, 1944. He rejected the remaining part of the refund claim. Para 6 of the impugned order is reproduced below: "6. I have carefully gone through the impugned order and considered the rival contentions. Duty payment in the impugned case is not under protest and Service Tax-3 returns were filed periodically showing therein the service tax pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Learned Authorized Representative for the Revenue submits that the relevant period in this case is October, 06 - March, 07 to October, 08 -March, 09 and the refund claim was filed on 03.09.2009. The total amount of refund claimed was Rs.1,04,66,929/- on the ground that the appellant had paid service tax under the category of "construction of residential complexes" service and had filed the necessary ST-3 returns and has also collected the amounts so paid as service tax from the customers. 6. The show cause notice was issued on 15.12.2009 on the ground that part of the claim is time barred and further that the appellant had collected the service tax amount from its customers. Order was accordingly passed rejecting the total refund claim by the original authority and it was sanctioned to the extent it was filed within one year, by the Commissioner (Appeals) by the impugned order. The amount so sanctioned has been directed to be credited to the consumer's welfare fund. 7. Learned Authorized Representative submits that as per section 11B of the Central Excise Act, the claim of refund has to be made by the person who has paid the tax or has borne the incidence of tax and the clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorized Representative and have carefully gone through the records of the case. We find that the impugned order has partly sanctioned the refund and credited it to the consumer welfare fund and partly rejected on the ground of time bar. It is true that the law laid down by the Hon'ble Supreme Court in the case of ITC Ltd, was that no refund to be sanctioned at all unless the assessments (including self assessments) are first assailed before the Commissioner (Appeals) and modified. However, the sanction of refund by the Commissioner (Appeals) has not been assailed by the Revenue either by an appeal or by a separate memorandum of cross objections. 10. Insofar as the application for refund is concerned, section 11B of the Central Excise Act reads as follows: "Section 11B. Claim for refund of duty and interest, if any, paid on such duty - (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he duty of excise and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (f) the duty of excise and interest, if any, paid on such duty borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify : Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). (4) Every notification under clause (f) of the first proviso to sub-section (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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