Page 105 - GSTL_18th June 2020_Vol 37_Part 3

2020 ] GURNANI INFRA DEVELOPERS PVT. LTD. v. COMMISSIONER OF CGST, JAIPUR 319
rejected vide a show cause notice No. 9171, dated 14-12-2016 on the ground that
the value shown in the input service invoices vis-à-vis value shown in the S.T
return do not match as far as the total value paid for receiving work contract ser-
vices. The said proposal was initially confirmed vide Order-in-Original No. 289,
dated 16/17-1-2017, an appeal was preferred which has been allowed on merits.
However, the refund claim has still being rejected as being found to be hit by the
Clause of unjust enrichment. Accordingly, the amount of Rs. 6,36,415/- has been
directed to be deposited with the consumer welfare fund as established under
Section 12C of Central Excise Act, 1944. Still being aggrieved the Appellant is
before this Tribunal.
3. I have heard Ms. Priyanka Goel Learned Advocate for the appellant
and Mr. K. Poddar, Learned D.R. for the department.
4. Learned Counsel for appellant has submitted that the impugned re-
fund claim has not been sanctioned, alleging that there is an unjust enrichment
on part of the appellant.
It is impressed upon that the Service Tax as is prayed to be refunded was
paid under reverse charge mechanism. There can be no occasion for applicability
of the principle of unjust enrichment in the given case for want of any possibility
of passing over the incidence to anybody else by the Service recipient. Learned
Counsel has relied upon “2019 (4) TMI 481-CESTATA, NEW DELHI, Sunrise
Spices Ltd. (2 appeals) v. C.C.E & S.T., Jaipur-1 Service Tax Appeal No.
ST/52463/2018-ST (SM), ST/52469/2018-ST (SM) Final Order Nos. 50335-
50336/2019”. Order under challenge is, accordingly, prayed to be modified re-
fund is prayed to be allowed and appeal is prayed to be dismissed.
5. Per contra Learned D.R has justified the order under challenge im-
pressing upon that after due findings the Learned Commissioner (Appeals) has
already held that the refund claim is admissible to the appellant on merits. It is
not even hit by the limitations. However, the same is ordered to be given to con-
sumer welfare fund due to being hit by the Clause of unjust enrichment no in-
firmity has been found in the order. Appeal is accordingly prayed to be dis-
missed.
1 7. After hearing the rival contentions and perusing the impugned rec-
ord, I observe that Commissioner (Appeals) has already held that the claim of the
appellant is maintainable on merits same is also not hit but limitation. Nothing
has been brought to the notice that any appeal has been preferred by the depart-
ment challenging those findings. However, the amount of said refund has been
denied to be disbursed rather is ordered to be deposited with consumer welfare
fund for want of the evidence regarding not passing of the incidence of the im-
pugned services by the appellant to any other person. In view thereof the narrow
compass of the present adjudication is as to :
whether the refund claim for an amount paid by the Appellant as service
recipient, erroneously, under reverse charge mechanism can be hit by the
principle of unjust enrichment.
This Bench only in the case of Sunrise Spices (supra) has already formed the opin-
ion as follows :

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1 Paragraph number as per official text.
GST LAW TIMES  18th June 2020  105