TaxTMI 
TaxTMI 
2023 (7) TMI 884
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....laid down by Hon'ble Supreme Court in the case of Mafatlal Industries vs. Union of India 1997 (89) E.L.T. 247 (SC) and as also the CA certificate eclosed by the appellant in support of its submission that the incidence of tax paid has not been passed on to others, is not main piece of evidence regarding the fact which is required to be proved by the appellant. However, the appellant has contested that the adjudicating authority has traversed beyond the scope of the show cause notice in making its allegations and rejected refund on grounds which were not part of the show cause notice. According to the appellant, decision in the case of Mafatlal Industries is not applicable to its case. It has also been contended that since there is no levy of service tax as has been held by the Hon'ble Delhi High Court vide its dated 23.04.2013 in W.P. (C) 4512/2012 and Hon'ble Supreme Court vide its order dated 07.01.2014, the amount paid as service tax takes the colour of an amount deposited and is not in the nature of service tax therefore, the provisions of service tax are not applicable to it, hence, the same is refundable. On this issue, Hon'ble Supreme Court has laid down the law if th....
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....k 38,347.00 Feb 2013 04.03.2013 60141 6360219 Axis Bank 36,422.00 Mar 2013 30.03.2013 90906 0292668 Union Bank 35,845.00 Apr 2013 30.04.2013 90086 0292668 Union Bank 35,075.00 They filed the refund claim claiming that Hon'ble Delhi High Court as vide its order dated 23.04.2013 in W.P.C. No.4512/2012 in case of M/s Delhi Chit Fund Association has quashed the levy of service tax on chit fund services. Hon'ble Supreme Court as vide his order dated 07.01.2014 confirmed the same by dismissing the appeal filed by the Department. Appellant filed this refund claim in the office of designated authority on 01.02.2014. Original Authority after issuing a show cause notice seeking to reject the refund claim on following grounds:- "(1) That you have deposited amount of Service Tax for the month of Sept, 2012 on 03.10.2012, Oct, 2012 on 03.11.2012 Nov, 2012 dated 28.11.2012, Dec, 2012 on 28.12.2012 and Jan, 2013 on 01.02.2013. You have filed the claim on 01/02/2014 and thus, counting one year from the date of payment, these payments are barred by time and liable to be rejected. (2) The Supreme Court judgement is of the date 07/01/2014 and thus the effect of this judgment a....
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.... any, paid on such duty paid by the manufacturer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person. (e) .... (f) ...." The manner in which the sub-section is worded, it makes it very clear that every refund claim has to be determined for admissibility and should be directed to be credited to the fund save for on fulfillment of the conditions specified in the proviso. Thus every determination under section 11 B should first determine the admissibility of the refund claim, and there after examine the applicability of the proviso, i.e. the exception in which the refund amount should be paid to the claimant and if the case is not covered by the exception specified by the proviso, the amount of refund determined has to be credited to the fund. 5. On the issue of unjust enrichment, I find that no ground has been taken by the Revenue in the show cause notice. Even during the course of hearing Authorised Representative appearing for the Revenue was unable to point out any such ground taken in the show cause notice and for production and giving opportunity to the appellant for production of the document to substantiate his ....
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....duty to others), there is no justice or equity in refunding the tax (collected without the authority of law) to him merely because he paid it to the State. It would be a windfall to him. As against it, by refusing refund, the monies would continue to be with the State and available for public purposes. The money really belongs to a third party - neither to the petitioner/plaintiff nor to the State - and to such third party it must go. But where it cannot be so done, it is better that it is retained by the State. By any standard of reasonableness, it is difficult to prefer the petitioner-plaintiff over the State. Taxes are necessary for running the State and for various public purposes and this is the view taken in all jurisdictions. Further in Para 99 of the judgement at point No. (ii), Hon'ble Supreme Court have held that "Where, however, a refund is claimed on the ground that the provision of the Act under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. This principle is, however, subject to an exception : where a person approaches ....
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....etween facts before them and those considered in the order. The observations made by the Hon'ble Apex Court, in the case of Mafatlal, and referred in the order of the Adjudicating Authority, are in respect of determination of the period of limitation. Hon'ble Apex Court has concluded that period of limitation as per the Limitation Act shall not be applicable in case where the person wishes to challenge the assessment made in his case for the reason of pronouncement made by the court or tribunal on the same issue in case of some other person. The order of the Apex Court do not conclude that the refund claim cannot be made but the refund needs to be examined as per the period of limitation as provided by the Chapter V of The Finance Act, 1994 read with Section 11B of the Central Excise Act, 1944. As per these statues the refund claim was to be made by the appellant within one year from the relevant date, which in the present case as per the Authorized Representative, representing the revenue is "date of payment of duty". Even if, I go by the date of payment at least the refund claim filed from February, 2013 on 04.03.2013, Mar, 2013 on 30.03.2013 and Apr, 2013 on 30.04.2013 c....