fiogf49gjkf0d
Refund — Unjust enrichment — Section 11B of the Central Excise Act — Service tax on job work found not leviable during specific period. Service tax was however charged by the job worker — Manufacturer did not claim CENVAT credit but issued debit note after a gap of time — Refund claim denied as assessee did not claim immediately — No investigation done to prove debit note wrong — No tax liability without letters of law — Assessee’s appeal allowed.
Facts:
The principal manufacturer issued debit note to the appellant who was a job worker on finding that the service tax on the job work was not leviable during the material period. The appellant was denied refund on the ground that the debit note was issued by the manufacturer after a long time. According to the appellant, they should not suffer by not getting back the money wrongly paid to the Revenue and if the assessee could show that the burden was not passed on or it was reversed, the claim of refund could not be denied. The decisions in the case of Commissioner of Service Tax, Bangalore v. Shiva Ciba Analyticals (I) Ltd., 2009 and Union of India v. A. K. Spintex Ltd., 2009 (234) E.L.T. 41 (Raj.) were relied upon. According to the Revenue, the appellant was disentitled to the refund as they did not immediately claim the refund and relied on the judgment of the Commissioner of Central Excise, Jaipur-II v. Adarsh Gaur Gum Udyog, 2000 (120) E.L.T. 138 (Trib.).
Held:
It was held that the Revenue’s plea does not sustain in light of the failure on part of the Revenue to prove that the debit note was wrong. Further, it was held that when there is no liability to pay tax, the appellant should not suffer and that no taxes can be realised without the letters of law. Accordingly, the appeal was allowed.
