Page 106 - GSTL_18th June 2020_Vol 37_Part 3

320 GST LAW TIMES [ Vol. 37
I further observed that in Appeal No. 52469, Commissioner (Appeals) has
even gone through the extent of holding that the refund in the present case
is hit by the principle of unjust enrichment. Admittedly the appellant herein
is the service recipient and paid, under a mistake, a duty under reverse
charge mechanism. Normally, it is the service provider, who has to pay the
Service Tax, as a recipient of services, when it is the obligation of the appel-
lant to discharge the Service Tax, the question of recovering the same from
service provider does not arise. As such, I am of the opinion that there is no
question of the impugned refund to be hit by the issue of unjust enrich-
ment. I draw my support from the decision of the Bench in the case of Redi-
cura Pharmaceuticals Pvt. Ltd. v. Commissioner of Service Tax, Delhi reported in
2015 (39) S.T.R. 485 (Tri. - Del.).
8. Though the Learned D.R. has mentioned that there can be the occa-
sions where even recipient of service who has paid Service Tax under reverse
charge mechanism, though erroneously, may be hit by unjust enrichment. To
deal with this argument again the record of appeal is perused and it is observed
that the balance-sheet of the appellant is very much on record. Perusal thereof
shows that since the year 2015 till the time of filing the impugned refund appel-
lant is showing the impugned amount of Rs. 6,36,415/- as an advance recovera-
ble in cash as being paid towards the Service Tax. I, therefore, am of the opinion
that there is sufficient evidence otherwise on record to falsify any unjust enrich-
ment as is alleged on part of the appellant. Seen from both these angles, it is held
that Commissioner Appeals has committed an error while holding the unjust
enrichment on part of the appellant without any cognizant reason being given to
support that finding.
9. Order is accordingly set aside appeal stands allowed.
(Dictated and pronounced in the open Court)

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2020 (37) G.S.T.L. 320 (Tri. - Chennai)

IN THE CESTAT, SOUTH ZONAL BENCH, CHENNAI
Ms. Sulekha Beevi C.S., Member (J)
SURYA ENTERPRISES
Versus
COMMISSIONER OF C. EX. & S.T., CHENNAI-III
Final Order No. 40667/2019, dated 8-4-2019 in Appeal No. ST/42365/2015-SM
Voluntary Compliance Encouragement Scheme (VCES) - Benefit de-
nied on the ground that audit team had already visited assessees’s premises -
However, department did not produce register of audit visit to establish their
visit - HELD : Rejection of VCES was improper - Section 106(2) of Finance Act,
2013. [para 7]
Audit - Initiation of - Department has to produce register of audit visit
to establish their visit - Letter merely requesting furnishing of documents can-
not be considered as initiation of audit. [para 7]
Appeal allowed
GST LAW TIMES  18th June 2020  106