9911796707
TMI Blog2024 (5) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating Authority has sanctioned the refund claim considering the issue of unjust enrichment. Being aggrieved by the orders-in-original, the Revenue filed appeal before the Commissioner (Appeal) who has rejected the revenue's appeal therefore, present appeal filed by the revenue, appellant. 2. Shri S S Vikal Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the grounds of appeal. He submits that both the lower authorities have not examined the aspects of unjust enrichment which is mandatory for allowing any refund claim in terms of Section 11B of Central Excise Act, 1944. Therefore, without examining the facts regarding the unjust enrichment the sanction of refund claim is not legal and correct. 3. On the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that due to doctrine of mutuality no service exists between the club or association and its members. When the Hon'ble Supreme Court held that the club or association and its members are not two distinct identity and there is a mutuality of interest between both of them on that basis only it was held that since no service provider or service recipient exists service tax is not payable. On the same principle, if any service tax is paid, it has gone from one hand to other within the same entity it cannot be said that the incidence of the service tax has been passed on. We find that the Learned Commissioner (Appeal) while deciding the unjust enrichment, given the following finding in his order:- "7. The issue pertains to applicability of unju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sly included in the statutory definition of 'dealer' under Madras General Sales Tax Act, 1959, so as to bring the club within the purview of taxing statute of the Madras Sales Tax, the Hon'ble Supreme Court, in the case of the Joint Commercial Tax Officer Vs. The Young Mens'Indian Association, considered the definition of the 'dealer' by which the club was declared dealer and after considering the definition of sale as given in the Act of 1959 and explanation-I appended to Section 2(n), specifically declaring the sale or supply or distribution of goods by a club to its members whether or not in the course of business was declared deemed to be a sale for the purpose of the said Act. In that situation, Hon'ble Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
