9911796707
TMI Blog2024 (12) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... Welfare and Service Trust, Coimbatore which had paid service tax to the Government account on 4.11.2016. The appellant claims that as he had not received any set off nor rendered any service to the Trust and that the payment of the amount is mistake of law, he is hence eligible for a refund claim of Rs.58,639/- filed by him. The Original Authority rejected the refund claim on the ground of limitation and unjust enrichment. The appellant preferred an appeal before Commissioner (Appeals) who vide the impugned order rejected the appeal filed by the appellant. Hence this appeal. 3. Shri K. Ramani, the appellant appeared for himself by the virtual mode and Shri Sanjay Kakkar, learned Authorized Representative appeared for the respondent. 3.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 (89) E.L.T. 247 (S.C.)]. Further, CESTAT Ahmedabad in Gujarat Eco Textile Park #10066 of 2017 ruled that one-time contribution paid by members is not taxable. The ST paid by him was also on a one-time non-refundable membership fee. Further, neither the Trust nor he did any service for Service Tax to be levied, and that he had not set-off the tax at any time. Since the amount was paid by mistake no time bar would apply. He prayed that the refund be sanctioned with 12% interest from Nov 2016. 3.2 The Ld. AR has taken me through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount in relation to which he is seeking refund and he has no locus standi to file the refund claim in terms of section 11 B(1). The said para is reproduced below; "In terms of Section 11B(1), the person claiming refund has to furnish documents or evidences to establish that the amount of duty / service tax and interest in relation to which refund is claimed was actually collected 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise before the expiry of one year from the relevant date in such form and manner as may be prescribed. The expression "any person" is of wide amplitude. The Act thus does not confine a claim of refund only to the person who has collected and deposited the tax in the government coffers. However, section 12B of CEA 1944, contains an important presumption that needs to be overcome before sanction of refund to an applicant. 5.2.1 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]. The provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful 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 ultimately bore the burden of excise duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
