2018 (5) TMI 1361 – CESTAT CHANDIGARH – TMI – Refund claim – refund filed on the premise that on their activity of construction, they are not liable to pay service, therefore, amount paid by them is to be refunded – time limitation – unjust enrichment – Held that: – it cannot be held that the appellant has filed refund claim with a delay. As in a case where is a dispute whether there is a liability of the assessee or not and the same has been settled by the higher forum, in that circumstances, the assessee’s entitled to file refund claim within one year from the date when the dispute has been settled by the higher forum – the refund claims filed by the appellant are within time.
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Unjust enrichment – Held that: – as there is no finding given by the authorities below, in that circumstances, the matter is remanded back to the adjudicating authority to decide the issue of unjust enrichment within 30 days of passing of this order and the appellant is also directed to produce the requi
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rvice, therefore, amount paid by them is to be refunded. The said refund claim was rejected on two grounds by the adjudicating authority: (A) time barred and (B) On the issue of bar of unjust of enrichment. 3. On appeal, the ld. Commissioner (A) rejected the refund claim on the premise that as the Hon ble High court of Punjab and Haryana, Chandigarh, in the case of Bharat Bhushan Gupta and Company & Others Vs. State of Haryana & Others reported in 2016 (44) STR 195 (P&H) as held that the State Housing Board of Haryana is a Governmental authority and no service tax is payable on any service provided to them. But the appellant was not part of the said case, therefore, they are not entitled for refund claim. Against the said order, the appellant is before me. 4. The ld. Counsel for the appellant submits that the ld. Commissioner (A) has fell an error holding that the appellant was not part of the order of the Hon ble High Court in the case of Bharat Bhushan Gupta & Company
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that they are not liable to pay service tax on 11.08.2016, whereas, the refund claims were filed by the appellant on 11.05.2016, which is prior to the decision of the Hon ble High Court of Punjab and Haryan. In that circumstances, it cannot be held that the appellant has filed refund claim with a delay. As in a case where is a dispute whether there is a liability of the assessee or not and the same has been settled by the higher forum, in that circumstances, the assessee s entitled to file refund claim within one year from the date when the dispute has been settled by the higher forum. Admittedly, in this case the Hon ble High Court of Punjab and Haryan, in appellant s own case has held that they are not liable to pay service tax on 11.08.2016, therefore, I hold that the refund claims filed by the appellant are within time. 8. With regard to the issue of unjust enrichment, as there is no finding given by the authorities below, in that circumstances, the matter is remanded back to the
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