Appellant wins refund claim appeal, order set aside.

The tribunal ruled in favor of the appellant, holding that the refund claim was not time-barred and that the appellant had satisfied the unjust enrichment requirement. Consequently, the impugned order was set aside, allowing the appeal with any consequential relief.

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Issues:
1. Refund claim rejection as time-barred and failure to pass unjust enrichment test.

Analysis:
1. Refund Claim Barred by Limitation:
The appellant, engaged in construction of residential flats, filed a refund claim for service tax paid under protest after a dispute with CBEC was settled in 2008. The authorities rejected the claim as time-barred and for unjust enrichment. The appellant argued that they sought clarification from CBEC in 2006, indicating they paid the tax under protest due to departmental pressure. As there was no prescribed form for such protest, the time limit under section 11B of the Central Excise Act, 1944 was deemed inapplicable. The tribunal agreed, holding that the refund claim was within time.

2. Unjust Enrichment Test:
The issue of unjust enrichment was also addressed. The appellant informed flat buyers about the ongoing dispute with CBEC regarding service tax liability and explicitly stated that the price agreed did not include service tax. They assured buyers that if the tax liability arose, it would be paid separately. This information was certified by a Chartered Accountant and reflected in the balance sheet. Consequently, the tribunal found that the appellant had met the burden of unjust enrichment. Therefore, the appellant was deemed entitled to the refund claim, and the impugned order was set aside, allowing the appeal with any consequential relief.

In conclusion, the tribunal ruled in favor of the appellant, holding that the refund claim was not time-barred and that the appellant had satisfied the unjust enrichment requirement, thereby granting the appeal and providing relief accordingly.

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