FININ2MIN · JUDGMENT INTELLIGENCE
Service Tax / Refund · F2J-C-2870

The Madras Club v. Commissioner of GST and Central Excise

VALIDATED · ACTUAL COURT DOCUMENT
Court
Madras High Court
Case number
C.M.A. No. 1327 of 2021
Decision date
2026-09-01
Bench
DR. ANITA SUMANTH; C.KUMARAPPAN; Supreme
Neutral citation
2026:MHC:3704
CNR
Not stated in retained copy
Subject
Service Tax / Refund
Disposition
Appeal partly allowed; refund of Rs.6,41,369 with section 11BB interest directed within eight weeks.
Later history
Not verified — check the official court record before reliance (as of 19 Sep 2026)
Open local complete judgment PDFComplete public judgment sourceOfficial court portal

Source transparency: The local PDF is an actual court document retained from the complete public source. The official court portal is recorded separately. Verify the official record and subsequent history before reliance.

Holding (ratio)

Unjust enrichment bars refund only to the extent the tax burden was passed on. The portion borne by the taxpayer itself remained refundable.

Scope limits

The holding is confined to the issues actually decided in the retained judgment; no view is attributed to the court on questions expressly left open or remanded.

Sources and completeness

PDF status
Complete searchable public court copy, retained unchanged
PDF origin
Downloaded unchanged from the complete public court-copy source
PDF pages
10
Extracted words
2,238
PDF SHA-256
64945fe8aaf02eeb897a2a453b0a6c474d144d676993fc00e5b2257b0bff8528
Complete searchable judgment text
    2026:MHC:3704


                                                                                                CMA No. 1327 of 2021








                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS


                                                         DATED: 01-09-2026


                                                                  CORAM


                                     THE HON'BLE DR.JUSTICE ANITA SUMANTH


                                                                     AND


                                    THE HON'BLE MR.JUSTICE C.KUMARAPPAN


                                                       CMA No. 1327 of 2021


                 M/s. The Madras Club


                 Rep. By its General Manager & Asst. Secretary,


                 Mr. M.J. Raja Pandiyan,


                 No.8, Adyar Club Gate Road,


                 Chennai 28.


                                                                                                    ..Appellant(s)


                                                                       Vs


                 The Commissioner of GST & Central Excise,


                 Chennai South Commissionerate,


                 No.690, E.V.R. Periyar Maligai,


                 Nandanam, Chennai 35.


                                                                                                 ..Respondent(s)











                          Prayer: This Civil Miscellaneous Appeal filed under Section 35G of the


                Central Excise Act, 1944, to set aside the Impugned Final Order No.40782 of


                2020 dated 08.09.2020 passed in Appeal No.ST/41796/2019-SM by the Hon’ble


                Customs Excise and Service Tax Appellate Tribunal Chennai and allows the


                refund together with applicable interest thereon with consequential relief.








                                  For Appellant(s):                 Mr.R.Anishkumar








                                  For Respondent(s):                Mr.Sai Srujan Tayi


                                                                    Standing Counsel














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                                                                                         CMA No. 1327 of 2021








                                                      JUDGEMENT


                         (Judgment of the Court was delivered by C.KUMARAPPAN, J.)








                          The present Civil Miscellaneous Appeal has been filed against the Final





                Order No.40782 of 2020, dated 08.09.2020, in Appeal No.ST/41796/2019-SM,





                passed by the Customs, Excise and Service Tax Appellate Tribunal, Chennai





                (hereinafter referred to as “the CESTAT” for the sake of convenience).











                          2. The brief facts which are necessary for the disposal of the present Civil





                Miscellaneous Appeal are that the appellant is registered with the Service Tax





                Department for providing “Membership of Club or Association Service”. While





                so, a demand was raised against the appellant for a sum of Rs.29,24,687/-





                towards the subscription amount received by the appellant from its members.





                The said demand was challenged before the First Appellate Authority, namely,





                the Commissioner (Appeals), and the First Appellate Authority, vide order





                dated 15.12.2009, set aside the said demand. The said order was subsequently





                upheld by the CESTAT. In pursuance thereof, the appellant claims a sum of





                Rs.15,51,086/-, which was paid by the appellant pursuant to the said demand. It





                is the case of the appellant that, once the demand was set aside, the appellant is





                entitled to have the refund of the said amount.














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                                                                                                  CMA No. 1327 of 2021








                          3. At the time of admission of this Court formulated the following





                substantial questions of law, vide order dated 17.04.2021:-





                                  (i) Whether the order passed by the CESTAT is perverse?


                                  (ii) Whether the CESTAT is right in ignoring Chartered


                           Accountant's Certificate which confirms the claimed refund


                           amount is lying in Books of account as Service Tax receivable


                           from the Government?


                                  (iii) Whether the CESTAT is right in including the


                           appellant's      refund       claim          attracts           "Principle    of


                           UnjustEnrichment" for the amount partly collected towards


                           deposit?


                                  (iv) Whether the CESTAT is right in rejecting the


                           appellant's refund claim for Rs.15,51,086/- which was paid


                           pursuant to an unlawful demand without authority of law?


                                  (v) Whether the CESTAT is right in permitting the


                           respondent's department to retain the amount contrary to the


                           Article 265 of Constitution of India?


                                  (vi) After the Hon'ble Supreme Court Judgment in State of


                           West Bengal and Others v. Calcutta Club Ltd. [2019-


                           TIOL-449SC -ST.LB] whether the CESTAT can treat Club and


                           its Members are different entities to decide the issue of "Unjust


                           enrichment" under section 11B of Central Excise Act,1944


                                  (vii) Whether the appellant is entitled for the interest form


                           the date of deposit or to what extent? "








                          4. Heard the learned counsel appearing for both sides on the above





                questions of law and perused the materials available on record.








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                                                                                        CMA No. 1327 of 2021














                          5. The learned counsel appearing for the appellant would submit that the





                CESTAT has erroneously dismissed the claim of the appellant on the premise





                that the appellant had passed on the tax amount to its members. He would





                submit that, according to the Auditor’s Certificate, in the books of account, the





                said amount is shown as the amount refundable to the members, but such





                material aspect was not considered by the authority. It is also the contention of





                the learned counsel for the appellant that the Auditor’s Certificate is a relevant





                document for determining the entitlement to refund, whereas the Appellate





                Authority has failed to consider the same. He would further place reliance upon





                the judgment of the Hon’ble Bombay High Court in Hindustan Petroleum





                Corporation Ltd. v. Commissioner of CGST & Central Excise, Navi Mumbai





                Commissionerate, reported in 2019 (365) E.L.T. 319 (Bom.), and the judgment





                of the CESTAT, Chennai, in Commissioner of Customs, Chennai-IV v. Adyar





                Gate Hotel, reported in 2018 (359) E.L.T. 228 (Tri.-Chennai), to contend that





                the Auditor’s Certificate is a relevant document while considering the nature of





                the accounts. It is his further contention that, despite production of the Auditor’s





                Certificate, the respondent authority has failed to consider the same, which is





                contrary to law.














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                          6. Per contra, the learned Standing Counsel appearing for the respondent





                strongly opposed the said contention and would submit that it is an admitted





                position that the appellant themselves had categorically admitted that they had





                collected the tax from their members. Having collected the tax from the





                members and thereafter seeking refund from the Department would amount to





                unjust enrichment. It is also the contention of the learned Standing Counsel that





                the Auditor’s Report clearly discloses that the appellant had collected the tax





                amount and passed on the duty element to its members. Having admitted the





                same, the appellant is not entitled to seek refund of the said amount from the





                Department.











                          7. We have given our anxious consideration to the submissions made on





                either side.











                          8. It is well-settled principle of law that, any refund to be made under





                Section 11B of the Central Excise Act, 1944 would be subject to the doctrine of





                unjust enrichment. The Hon’ble Supreme Court has, time and again,





                categorically held that, when the tax component has already been recovered





                from their customers or passed on to other persons, then the taxpayer, is not





                entitled to seek restitution from the State. The right to restitution is neither





                automatic nor unconditional. In an oft-quoted judgment of the Hon’ble Supreme





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                                                                                           CMA No. 1327 of 2021








                Court in Mafatlal Industries Ltd. v. Union of India, reported in (1997) 5 SCC





                536, it has been held as follows:-





                                  “108. (iii) A claim for refund, whether made under the


                           provisions of the Act as contemplated in Proposition (i) above or


                           in a suit or writ petition in the situations contemplated by


                           Proposition (ii) above, can succeed only if the plaintiff-petitioner


                           alleges and establishes that he has not passed on the burden of


                           duty to another person/other persons. His refund claim shall be


                           allowed/decreed only when he establishes that he has not passed


                           on the burden of the duty or to the extent he has not so passed on,


                           as the case may be. Whether the claim for restitution is treated as


                           a constitutional imperative or as a statutory requirement, it is


                           neither an absolute right nor an unconditional obligation but is


                           subject to the above requirement, as explained in the body of the


                           judgment. Where the burden of the duty has been passed on, the


                           claimant cannot say that he has suffered any real loss or


                           prejudice. The real loss or prejudice is suffered in such a case by


                           the person who has ultimately borne the burden and it is only that


                           person who can legitimately claim its refund. But where such


                           person does not come forward or where it is not possible to


                           refund the amount to him for one or the other reason, it is just


                           and appropriate that that amount is retained by the State i.e. by


                           the people. There is no immorality or impropriety involved in


                           such a proposition.





                                  The doctrine of unjust enrichment is a just and salutary


                           doctrine. No person can seek to collect the duty from both ends.


                           In other words, he cannot collect the duty from his purchaser at








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                           one end and also collect the same duty from the State on the


                           ground that it has been collected from him contrary to law. The


                           power of the court is not meant to be exercised for unjustly


                           enriching a person. The doctrine of unjust enrichment is,


                           however, inapplicable to the State. State represents the people of


                           the country. No one can speak of the people being unjustly


                           enriched.”











                          9. As per the above judgment, for a taxpayer to claim refund, he must





                establish the actual loss or prejudice suffered by him. In the case in hand, even





                according to the Auditor’s Certificate, the appellant has recovered a sum of





                Rs.9,09,717/- from its members and only a sum of Rs.6,41,369/- remains





                pending collection from the members. As held by the Hon’ble Supreme Court in





                Mafatlal Industries Ltd. (cited supra), the doctrine of unjust enrichment is a just





                and salutary principle, and no person can claim a refund when he has already





                collected the tax amount from other persons. If that be so, the right of the





                taxpayer to seek refund would stand eclipsed to the extent of the amount already





                recovered from others.














                          10. The Hon’ble Supreme Court has further held that, though the tax have





                been mistakenly collected, retention of such mistakenly collected tax, in the





                above context, would not amount to immorality or impropriety, as ultimately





                the amount would be utilised for the benefit of the people of the State.


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                                                                                       CMA No. 1327 of 2021








                Therefore, the appellant cannot raise a plea of unjust enrichment against the





                State.














                          11. The learned counsel for the petitioner has relied upon various





                judgments to impress upon this Court that the Auditor’s Report is a relevant





                document. We are not in disagreement with the above submissions. But the





                reliance upon the Auditor’s Report depends upon its veracity and authenticity.














                          12. With the above backdrop, if we look into the Auditor’s Certificate,





                though the entire amount is shown in the accounts as refundable, a sum of





                Rs.9,09,717/- has already been received from the appellant’s members.





                Therefore, in respect of the portion of the amount in a sum of Rs.9,09,717/-, the





                appellant has already passed on the burden to its members. However, the





                remaining sum of Rs.6,41,369/- is yet to be received from the members. In other





                words, no burden has been passed on to the members to the extent of





                Rs.6,41,369/-. Therefore, the appellant is entitled to have refund only to the





                extent of Rs.6,41,369/-.














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                          13. In view of the above legal position, Questions of Law Nos.1 to 5 are





                answered in terms of the observations made hereinabove in this judgment, and





                Questions of Law Nos.6 and 7 are answered in favour of the assessee.





                Accordingly, the impugned order dated 08.09.2020 is set aside, and the





                authorities are directed to refund a sum of Rs.6,41,369/- to the appellant,





                together with applicable interest in terms of Section 11BB of the Central Excise





                Act, 1944. The said amount shall be paid within a period of eight weeks from





                today.














                          14. In the result, this Civil Miscellaneous Appeal is partly allowed to the





                extent indicated above. There shall be no order as to costs.














                                                                                         (A.S.M.,J.) (C.K.,J.)


                                                                                              01-09-2026


                Index: Yes


                Speaking Order


                Neutral Citation: Yes





                KV





                To





                The Commissioner of GST & Central Excise,


                Chennai South Commissionerate,


                No.690, E.V.R. Periyar Maligai,


                Nandanam, Chennai 35.














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                                                                                CMA No. 1327 of 2021








                                                                       DR.ANITA SUMANTH J.


                                                                                     AND


                                                                          C.KUMARAPPAN J.





                                                                                                KV














                                                                            CMA No. 1327 of 2021














                                                                                       01-09-2026














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Disclaimer: Educational and research material only; not legal, tax, investment or professional advice. Verify the controlling court record, statutory version, jurisdiction and subsequent history.