Unjust enrichment did not bar refund where service tax burden was not shown to have been passed on.

Refund of service tax paid under protest was held not to be hit by unjust enrichment where a chartered accountant's certificate verified the books and stated that the assessee had borne the tax incidence without recovering it from customers or transporters. The Tribunal found no contrary evidence from the Revenue to rebut that certificate. It also held that merely debiting the amount as an expense or sale expenditure in the accounts did not, by itself, prove that the tax burden had been passed on. On that basis, the refund was admissible.

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Issues: Whether the refund of service tax paid under protest was barred by unjust enrichment when the amount had been debited in the assessee's accounts as an expense and the Revenue produced no contrary evidence to the chartered accountant's certificate.

Analysis: The refund claim arose from service tax paid on services of goods transport operators, though the assessee claimed exemption as a small scale under Notification No. 43/97-ST. The decisive question was whether the burden of the tax had been passed on to customers. The Commissioner (Appeals) accepted the chartered accountant's certificate, which verified the books of account and recorded that the assessee had borne the incidence of service tax and had not recovered it from customers or transporters. The Tribunal noted that the Revenue did not produce any material to rebut that certificate. It also accepted that merely showing the amount as an expense or sale expenditure in the accounts did not, by itself, establish passing on of the burden.

Conclusion: The bar of unjust enrichment did not apply, and the refund was admissible in favour of the assessee.

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