Test of unjust enrichment is passed by service provider and he is entitled to refund of service tax wrongly paid

Service Tax : Where invoice does not show service tax and service recipient certifies that he did not bear/pay service tax, test of unjust enrichment is passed by service provider and he is entitled to refund of service tax wrongly paid
■■■
[2015] 55 taxmann.com 460 (Mumbai - CESTAT)
CESTAT, MUMBAI BENCH
Vyankatesh Real Estate Developers
v.
Commissioner of Central Excise, Nagpur*
ASHOK JINDAL, JUDICIAL MEMBER
ORDER NO. A/211/2014/SMB/C-IV
APPEAL NO. ST/644/2010-MUM
JANUARY  17, 2014
Section 11B, read with section 12A, of the Central Excise Act, 1944, sections 65(25b), 65(30a) and 83 of the Finance Act, 1994 and section 27 of the Customs Act, 1962 - Refund - Doctrine of unjust enrichment - Assessee, a builder and developer, sold flats to ultimate buyers of residential unit and paid service tax thereon - Later on, assessee realised that service tax was not payable and therefore, filed refund claim - Assessee produced certificate from buyers that they have not paid service tax to assessee and assessee had not raise invoice of service tax - Department denied refund on ground that bar of unjust enrichment was not passed - HELD : Service tax was calculated on sale price of flats and service tax, though not payable, was paid by assessee on their own - Buyers had certified that they had not paid service tax - No service tax invoice was issued pertaining to said transaction - Thus, it cannot be held that service tax has been passed onto buyer of flat - Hence, assessee had passed bar of unjust enrichment and was entitled to refund - Even otherwise, as service tax was not payable, section 11B was also not applicable [Paras 4 and 5] [In favour of assessee]
Hemant Rajandekar, CA for the Appellant. D.D. Joshi, Supdt. (AR) for the Respondent.