9911796707
TMI Blog2025 (3) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... Such amount should be refunded even without application of the provisions relating to unjust enrichment. Support drawn from the decision of the principal bench of this tribunal in the case of Hexacom Vs. Commissioner of Central Excise, Jaipur [2003 (6) TMI 2 - CESTAT, NEW DELHI]. It is also observed that the amount in question since was deposited on 31.03.2009 towards the sale of SIM cards of financial year 2008-09, the tax was paid after the said activity of sale hence the issue of unjust enrichment of appellant does not otherwise arise. Rejection of refund claim on the ground of being time barred - HELD THAT:- Section 11B of Central Excise Act, 1944 read with section 83 of Finance Act, 1994 makes it abundantly clear that if the refund cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant took registration at the end of financial year 2008-09 and deposited the proposed amount for the said financial year. The impugned show cause notice proposed the demand for the period including 2008-09 to financial year 2011-12. Hence, this ground of rejection of impunged refund claimed is factually incorrect.
Conclusion - i) The refund claim is not time-barred as it is filed within one year of the Order-in-Original that nullified the service tax demand. ii) The appellant is not unjustly enriched, and the refund should be granted. iii) The lack of ST-3 returns does not invalidate the refund claim, as the service tax demand for the relevant period was already dropped.
Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... filed beyond a period of one year from the date of payment of service tax is beyond the period of limitation. c) It was also objected on the ground of unjust enrichment. 1.3 Accordingly, a Show Cause Notice no. 07/2021 dated 29.10.2021 was issued proposing rejection of refund claim on the grounds as mentioned above. The said proposal was initially confirmed vide Order-in-Original no. 02/2022 dated 13.01.2022. The appeal against the said order has been rejected vide the impugned order in appeal. Being aggrieved the appellant is before this tribunal. 2. We have heard Ms. Priyanka Goel, learned Advocate for the appellant and Shri Rohit Issar, learned Authorized Representative for the department. 3. Learned counsel for the appellant submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the date of said Order-in-Orginal. 3.1 It is further submitted that the amount in question was deposited for the period 2008-09 hence is part and parcel of Orderin- Original dated 22.07.2021. Hence it is wrongly mentioned in the order under challenge that there is no evidence about the amount of claim to be the amount for the disputed period. It was finally submitted that present is not the case of unjust enrichment as the amount in question was deposited after the SIM card were sold to the customer. Question of passing of the burden of the amount in question to the customers/ buyers does not arise. The impugned order is alleged to have ignored all these relevant facts on record hence is prayed to be set aside. Appeal is accordingly pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax liability on the amount / commission / incentive received from selling SIM cards was raised by the department before Hon'ble Supreme Court however the department withdrew its appeal 6. The above observed admitted facts clearly reflect that department has not raised nor ever confirmed any service tax liability of the appellant for the period prior 2008-09. The proposal of service tax liability for a period from 2008-09to 2011-12 stands already decided in favour of the appellant. The findings with respect to dropping of the demand are in the conformity with the order of the Hon'ble Supreme Court on similar issue in another departmental appeal. It becomes clear that the amount in question does not relates to service tax liability of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile refund claim shall start from the date of said judgement / order. As already observed above that the Order-in-Original dated 22-07.2021 has dropped the service tax demand holding no service tax liability of the appellant, the refund claim filed on 24.09.2021 is therefore well within one year of the period of limitation as prescribed under section 11B of Central Excise Act, 1944, explanation B(ec), read with section 84 of Finance Act 1994. In the light of this discussion, we hold that the adjudicating authority below has erred in ignoring the earlier order passed by the department in favor of the present appellant. The Hon'ble Supreme Court in the case of Vishnu Traders Vs. State of Haryana & Ors. reported as 1995 Suppl. (1) SCC 461, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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