2013 (11) TMI 1688 - AT - Service Tax

Refund of service tax paid - denial on the ground that appellant has not proved that they had not passed on the incidence of such tax to anybody else - principles of unjust enrichment - reverse charge mechanism - Held that - In the case of tax paid on reverse charge mechanism it is very obvious that incidence has been borne by the person (appellant) who is receiving the services - the refund should be granted to the appellant instead of crediting in Consumer Welfare Fund - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Applicability of Service Tax on services availed from foreign agents for selling export goods.
2. Claim for refund of Service Tax paid under reverse charge mechanism.
3. Application of unjust enrichment principle in the refund claim.
4. Interpretation of relevant case laws to support arguments.
5. Decision on whether refund should be granted or credited to Consumer Welfare Fund.

Analysis:

1. The appellant availed services of sales agents located abroad for selling export goods and paid commission to them during a specific period. The issue arose regarding the applicability of Service Tax under Rule 2(1)(d)(iv) of the Finance Act, 1994. The Tribunal had previously ruled in favor of the appellant, stating that the levy of tax was invalid as it was collected before the introduction of Section 66A on 18-4-2006. Subsequently, the appellant filed a refund application, which was initially rejected by the Asst. Commissioner, leading to an appeal before the Commissioner (Appeals).

2. The appellant argued that the tax was paid under the reverse charge mechanism, and the incidence of tax was borne by them, making it impossible to pass it on to anyone else. The appellant cited relevant case laws, including Polyspin Ltd. v. CCE, Tirunelveli and CCE, Pune v. Kirloskar Ebara Pumps Ltd., to support their claim.

3. The Revenue, represented by the ld. AR, maintained the findings of the lower authorities and referred to the decision of the Hon. Apex Court in Union of India v. Solar Pesticides Ltd. The issue of unjust enrichment was raised concerning the refund claim.

4. After considering arguments from both sides, the Member (T) noted that in cases of tax paid under the reverse charge mechanism, the incidence is borne by the recipient of services, i.e., the appellant. The Member distinguished the case of Solar Pesticides Ltd., stating it was not comparable to the present case. Relying on the Tribunal decisions cited by the appellant, the Member allowed the appeal, ordering that the refund be granted to the appellant instead of being credited to the Consumer Welfare Fund.

5. In conclusion, the appeal was allowed with consequential relief, directing that the refund should be granted to the appellant. The decision was pronounced in open court by the Member (T).