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TMI Blog2024 (12) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that needs to be overcome before sanction of refund to an applicant. As per section 12B of CEA 1944, the presumption is that the incidence of duty has been passed on to the final buyer. Every person who has paid duty, unless the contrary is proved by him, is deemed to have passed on the full incidence of such duty to the buyer of such goods [or consumer of such service] - In the impugned case the appellant states that the tax, though illegal, has finally come to be collected from him and the incidence of the tax has come to finally rest with him as being the final consumer. Hence he is eligible for the refund and there is no unjust enrichment involved. It is clear that it is the appellant who has borne the ultimate incidence of the tax, and not the Trust, who is the eligible claimant of the refund and is not barred from claiming the same. Further the question of unjust enrichment also does not arise as the amount has been paid from the appellants own resources and has not been shown to have been passed on. The appeal on this issue hence succeeds. Whether the refund claim is time barred? - HELD THAT:- It is found that though this legal issue has been raised by the Ld. AR during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bharat Cess 0.5% 1,954.63 Krishi Kalyan Cess 0.5% 1,954.63 Total 4,49,563.76 Rounded off to 4,49,564.00 He informed the Trust that the payment of Service Tax was not necessary, based on Cricket Club of India case, and requested the Trust to apply for a refund, as early as 18/11/2016 by email. In C.T.O. v. Young Men s Indian Association (1970) 1 SCC 462, the court's reasoning is abundantly clear in para 26. There is no difference between registered club, registered society or incorporated by a deed as in case of Trust. Here also, the common property is held for and by all members. Only in proprietary clubs the ownership is with the owner and not with members. When the Trust did not take any action on his request, he got an NOC from the Trust and applied for refund as Principal by letter dt 30.1.2017. He stated that the Hon ble Patna High Court in case #2259 of 2018 judgement dt 2/7/2019, ruled that consumers can apply for refund, emphasizing that there is no Unjust Enrichment . Moreover, since the Trust had collected the ST from him it could not claim refund as it would amount to Unjust Enrichment , as is clear in SC ruling in Mafatlal Industries Ltd. Vs Union of India [1997 (8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from him or paid by him. In the instant case, the Appellant had produced receipt showing the payment of Rs.4,49,564/- to the Trust and in support of their claim of subject refund, they have furnished a challan of the Trust showing the payment of Service Tax of Rs.4,39,055/- to the Government account. It is quite clear that the Appellant had not paid the tax to the Government account, in relation to which he is seeking refund and he has no locus standi to file the refund claim in terms of section 11B(1). As already observed, the Trust is registered with the Department for the provision of various services and they are paying service tax for the same. In this regard, the Appellant has not furnished any document to corelate the payment made by him to the Trust with the service tax payment made by the Trust to the Government account vide the said challan. The Appellant has not furnished any documentary proof or evidence to distinguish whether the said amount paid by the Appellant to the Trust, has been actually paid by the Trust to the Government account vide the cited challan, in relation to which he is seeking refund. Hence, the Appellant has failed to establish that the amount claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant in construing whether a tax is a direct or an indirect one. The ultimate incidence of an indirect tax need not be on the person who collects and pays the tax but is on the ultimate consumer of the good or service on whom the tax rests. [See State of Karnataka Vs Drive-In Enterprise - (2001) 4 SCC 60 (13)]. He cannot further pass on the incidence of tax to a third person. It is this person who is free from the concept of unjust enrichment having paid the money himself, who is the rightful recipient of the refund. 5.4 A 3 Judge Bench of the Hon ble Supreme Court in its judgment in Commissioner, Central Excise, Madras Vs M/S. Adison Co. Ltd [AIR 2016 SUPREME COURT 4007 / 2016 (10) SCC 56], held as under; 21. That a consumer can make an application for refund is clear from paras 98 and 99 of the judgment of this Court in Mafatlal Industries (supra). We are bound by the said findings of a Larger Bench of this Court. The word buyer in Clause (e) to proviso to Section 11-B (2) of the Act cannot be restricted to the first buyer from the manufacturer. Another submission which remains to be considered is the requirement of verification to be done for the purpose of finding out who ..... X X X X Extracts X X X X X X X X Extracts X X X X
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