2014 (3) TMI 733

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....lant was not entitled to the refund of Service Tax of Rs.31,89,986/- paid on the Gas Compression Charges. In the said order, the adjudicating authority also held that an amount of Rs.5,88,039/- was hit by time bar limitation as the claim was filed on 04.10.2006 and the said amount pertained to the period August/September 2005. 2.1 On being aggrieved by the above OIO, appellant filed an appeal before Commissioner (Appeals) who vide OIA No.185/VDR-I/2007, dt.25.09.2007, held that the Gas Compression Charges are not liable to Service Tax and directed the original authority to decide the refund claim in terms of Section 11 B of Central Excise Act, 1944. 2.2 While deciding the refund claim of Rs.31,89l,986/- pursuant to the Order-in-Appeal....

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....rity who vide Order-in-Revision dt.29.10.2009 revised the order of sanctioning Rs.26,01,947/- on the ground that unjust enrichment was applicable to the refund of Service Tax paid by the appellant against which t he present appeal has been filed. 3. Shri J.C. Patel (Advocate) appearing on behalf of the appellant argued that Service Tax was collected by the appellant from the customers but the same was later paid back to the customers by issuing suitable credit/ debit notes. It was his case that these facts have been discussed by the adjudicating authority in last para of his OIO dt.25.03.2008 and that as per the following judgments/CBEC clarifications, unjust enrichment is not attracted in the present proceeding:-    &n....

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.... [Para 6.1 (IV)] 4. Shri J. Nagori, Addl. Commissioner (A.R.) appearing on behalf of the Revenue argued that unjust enrichment is attracted in the present case as duty once recovered from the customers is always passed on by the customers or even credit of such Service Tax paid could be taken by the customers. He relied upon the following case-laws.            i) Orion Steel Corporation Vs CCE Vadodara  2008 (231) ELT 332 (Tri-Ahmd)           ii) Grasim Ind. (Chemical Divn.) Vs CCE Bhopal  2003 (153) ETL 694 (Tri-LB)           iii) Sangam Processors (Bhilwara) Ltd Vs Collr.C.E., Ja....

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....l (I) Ltd Vs CST Bangalore 2007 (7) STR 35 (Tri-Bang), the issue of credit note by Poornima would be sufficient for the purpose of claiming refund from the Department. Further, the Departmental clarifications issued by the Board in the form of frequently asked questions also are in favour of the appellants. In Para 6.1 of the clarification, it has been stated 'it is important to note that any amount of Service Tax paid in excess of the actual liability is refundable only if it is proved that the claimant of refund had already refunded such amount to the person from whom it was received or had not collected at all. It is not the finding of the lower authorities that appellants have not refunded the amount. The issue of credit note/debit note....