Page 130 - GSTL_3rd September 2020_Vol 40_Part 1

64 GST LAW TIMES [ Vol. 40
terest was confirmed and penalties were also imposed. The said order was chal-
lenged before the Learned Commissioner (Appeals) who dropped certain part of
demand and confirmed certain part of demand. The orders of Ld. Commissioner
(Appeals) dropping the demand of service tax were challenged before the Tribu-
nal and this Tribunal vide order dated 21-10-2016 dismissed the appeals filed by
the Revenue and the order was issued on 16-11-2016. Consequent to that, the ap-
pellants filed the refund claims on 2-11-2017. The said refunds claim were reject-
ed holding that the same is filed beyond the period of one year and failed to pass
the bar of unjust enrichment. Against the said order, the appellants have filed
appeals before me.
3. Learned Counsel appearing for the appellants submits that against
the order of Commissioner (Appeals) which was in respect of three parties name-
ly appellants and M/s. Argus Marketing. The refund claim was rejected on the
same ground and this Tribunal has decided the issue in favour of the appellant
vide Final Order No. 53419-53420/2018, dated 19-12-2018. Therefore, the refund
claims are not barred by limitation as the same were filed within one year of the
issue of the order of this Tribunal and the appellant has passed the bar of unjust
enrichment service tax as no service tax has been recovered from the service re-
cipient. Therefore, the impugned order is to be set aside and refund claims be
allowed.
4. On the other hand, Learned Authorised Representative for the Reve-
nue supported the impugned order.
5. I find that the facts are not in dispute that this Tribunal held that ap-
pellants are not liable to pay service tax vide Final Order dated 21-10-2016 which
was issued on 16-11-2016 and the refund claims were filed by the appellants on
2-11-2017, therefore, the impugned refund claims were filed within one year of
the date of issuance of the order by this Tribunal. In that circumstances, I hold
that the relevant date for filing the refund claim is 16-11-2016 and from the date
within one year, they were required to file refund claim in terms of Section 11B
of the Central Excise Act, 1944 which the appellants have done. Therefore, I hold
that the refund claim cannot be rejected as barred by limitation.
6. Further, I find that the service tax has been paid by the appellant un-
der protest. Moreover, at the time of issuance of invoice, they have not charged
any service tax from the service recipient for reimbursement of any amount to-
wards service tax to the appellant. In that circumstances, I hold that the appellant
have passed the bar of unjust enrichment which is not applicable to the facts of
the present case.
7. In that circumstances, I hold that the appellant are entitled to the re-
fund of the amount for which they have filed refund claims. Accordingly, by set-
ting aside the impugned order the refund claims are allowed.
8. The appeals are allowed with consequential relief, in accordance
with law.
(Dictated and pronounced in open Court)

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GST LAW TIMES  3rd September 2020  146