Refund of service tax remittance allowed where tax incidence was not passed on and unjust enrichment was not established.

Refund of the amount remitted into the service tax account was held admissible because the payment was not shown to have been collected from the service recipient as service tax. No service tax return had been filed treating the amount as tax paid, and the remittance was only a higher credit to the service tax account rather than a refund of tax paid on return or provisional determination. The contract placed the burden of any service tax on the appellant, and the recipient certified that no tax had been reimbursed. On these facts, the incidence of tax was not passed on, so the unjust enrichment bar did not apply.

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Issues: Whether the appellant was entitled to refund of the amount remitted towards service tax and whether the refund was barred by unjust enrichment.

Analysis: The amount had not been realized from the service recipient as service tax, and no service tax return had been filed treating the amount as tax paid. The remittance was only a higher amount credited to the service tax account, and the case was not one of a refund of service tax paid pursuant to a return or provisional determination. The material on record also showed that the contract required service tax, if any, to be borne by the appellant, and the service recipient had certified that no service tax had been reimbursed. On these facts, the incidence of tax was not shown to have been passed on, and unjust enrichment did not arise.

Conclusion: The refund was admissible and the objection based on unjust enrichment was rejected in favour of the assessee.

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