2018 (12) TMI 790 – CESTAT CHENNAI – TMI – Refund of service tax paid erroneously – no service was provided – rejection on the ground of time limitation and unjust enrichment – period from April 2004 to August 2007 – Held that:- The refund claim has been filed on 14.3.2008. The Ministry of Company Affairs has issued the order of amalgamation on 30.4.2007. Further, in this order it is specifically stated that the amalgamation is to take effect from 1.4.2004 – In the present case, they have filed the refund claim within one year of the order passed by the Ministry of Company Affairs. In such a case, the refund claim which has been filed within one year after receiving the order or after coming to know about the amalgamation has to be considered to be made within the time prescribed under section 11B of the Act – thus, the refund claim is not hit by time bar.
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Unjust enrichment – Held that:- The Tribunal in the case of Usha International Ltd. [2016 (3) TMI 205 – CESTAT NEW DELHI] af
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ing the facility of storage to IBP Co. Ltd. and received consideration for the services provided under Storage and Warehousing services . They discharged service tax for such services. Later, the Ministry of Company Affairs accorded sanction to the scheme of amalgamation of M/s. IBP Co. Ltd. with the appellant s organization (M/s. IOC) vide order dated 30.4.2007. In view of such amalgamation, the appellant filed a refund claim on 14.3.2008 seeking refund of service tax paid on storage and warehousing services to the tune of ₹ 30,27,454/- for the period from April 2004 to August 2007 stating that pursuant to scheme of amalgamation which has taken effect from 1.4.2004, since both the entities have become a single entity, there is no service provided and therefore no liability to pay service tax. A show cause notice was issued proposing to reject the refund claim on the ground of time bar and also for the reason that the appellant had not produced any evidence to show that the incid
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refore filed the refund claim on 14.3.2008. The refund claim has been filed within one year as prescribed under section 11B of the Central Excise Act, 1944 read with Section 83 of Finance Act, 1994. The authorities below have rejected the refund claim alleging that the service tax having been paid in 2004, the refund claim filed on 14.3.2008 is barred by limitation. He adverted to sub-clause (ec) of Section 11B(5) of Central Excise Act, 1944 and submitted that as per this provision, in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, appellate Tribunal or any court, the relevant date for reckoning the period of one year would be the date of such judgment, decree, order or direction. Ld. counsel has produced a copy of GSR No. 238 dated 2.2.1978 issued by the Ministry of Company Affairs wherein it has been directed that the Companies Act is to be modified / amended in Section 100,101, 102, 103, 391 and 394 by substitu
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efore no question of unjust enrichment would arise. To support his argument, he relied upon the decision of the Tribunal in the case of Usha International Ltd. Vs. CST – 2016 (43) STR 552 (Tri. Del.) 3. The ld. AR Shri K. Veerabhadra Reddy supported the findings in the impugned order. He submitted that the relevant date for computing the limitation as prescribed under section 11B would be the date of payment of duty / service tax. In this case, the service tax was paid from April 2004 to August 2007. The refund claim has been filed on 14.3.2008 which is beyond the period of one year. With regard to the argument of the ld. counsel referring to sub-clause (ec) in Section 11B(5), he submitted that the relevant date mentioned in the said provision is with regard to refund which is in consequence of judgment or decree passed by any court. The said provision does not refer to a direction given by Ministry of Company Affairs or of a High Court for amalgamation. He argued that the authorities
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d scheme. 2. Part II of the Scheme of Amalgamation between IBP and IOC for which sanction has been accorded vide the Order of Central Govt. stated above specifies that the Amalgamation is with effect from the Appointed Date i.e.. 1.4.2004. From the above, it can be seen that the appointed date for the amalgamation to take effect is 1.4.2004. The order of amalgamation passed by the Ministry of Company Affairs has to be considered as an order passed by the court itself as per the amendments brought forth in the Companies Act by substituting the words Central Government instead of Court . In any case, if an order of amalgamation is passed by any High Court, the appellant would be able to file the refund claim only after such order comes within their knowledge. In the present case, they have filed the refund claim within one year of the order passed by the Ministry of Company Affairs. In such a case, the refund claim which has been filed within one year after receiving the order or after c
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ugh the order of merger was passed High Court on 26.5.2008, the merger was to take effect from 1.4.2007. The Tribunal after analyzing the issue held that the assessee is eligible for refund as the service was rendered to self and the burden cannot be passed on to one self. Further, in the case of M/s. Sescot Sheet Metal Works Ltd. Vs. Commissioner of Customs – 2015 (327) ELT 545 (Mad.), the jurisdictional High Court held that the doctrine of unjust enrichment is inapplicable to the State (PSU). and therefore it cannot tantamount passing the burden to any other person. Following the said decision, we are of the considered view that the rejection of refund observing that it is hit by unjust enrichment is incorrect. 6. After appreciating the facts and also applying the position of law, as held in the decisions discussed above, we are of the considered opinion that the rejection of refund is unjustified. The impugned order is set aside and the appeal is allowed with consequential relief, i
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