2018 (7) TMI 1114 – CESTAT ALLAHABAD – TMI – Refund claim – GTA Service – reverse charge mechanism – denial on the ground of unjust enrichment and time limitation – Section 11B of the Central Excise Act, 1944 – Held that:- The Service Tax paid, was paid under the category of “Reverse Charge Mechanism”, The appellant himself was the service recipient. Therefore, the question of passing on incidence on other person, does not arise at all since the appellant was service recipient.
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Time Limitation – Held that:- Karnataka High Court in the case of K.V.R. Constructions Versus Commissioner of Central Excise, Bangalore [2009 (8) TMI 150 – KARNATAKA HIGH COURT] wherein it was held that if an amount paid by assessee to Revenue considering Service Tax, it is to be treated as deposit at the hands of Government and over such amount limitation under Section 11B of the Central Excise Act, 1944, does not apply.
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Refund allowed – appeal allowed – decided in favor of appellant. – APPEAL No.
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alue. However, subsequently they realized that Notification No. 26/2012-ST dated 20/06/2012 has provided exemption from so much of the Service Tax leviable under Section 66B of the Finance Act, 1994, which was in excess of 25% of the value calculated and as a result during the aforesaid period they were required to pay Service Tax on taxable value of ₹ 17,72,016/- which was 25% of ₹ 70,88,083/- and as a result they had paid ₹ 8,76,090/- (-) ₹ 2,19,020/- = ₹ 6,57,070/- excess Service Tax. The said excess paid Service Tax was sought to be refunded through the said application. The appellant was issued with a Show Cause Notice dated 24/06/2015, wherein it was contended that in terms of Section 11B of the Central Excise Act, 1944, made applicable to Service Tax through Section 83 of the Finance Act, 1994, the Refund Application was time barred. The appellant was called upon to show cause as to why the said refund application should not be rejected. The said cl
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nt Service Tax in view of Notification No.26/2012-ST dated 20/06/2012 wherein it was provided that Service Tax would be applicable only on 25% of the consideration. The appellant had paid Service Tax on 100%. Therefore, under Section 66B of the Finance Act, 1994, the amount sought as a refund, does not represent Service Tax. He has further submitted that the Service Tax paid, was paid under the category of "Reverse Charge Mechanism", The appellant himself was the service recipient. Therefore, the question of passing on incidence on other person, does not arise at all since the appellant was service recipient. Therefore, the finding by ld. Commissioner (Appeals) that the claim of refund was hit by bar of unjust enrichment is not sustainable. He has relied upon ruling of Hon'ble Bombay High Court in the case of Parijat Construction Versus Commissioner of Central Excise, Nashik reported at 2018 (9) G.S.T.L. 8 (Bombay), wherein it was held that the amount paid as duty by mist
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