2011 (1) TMI 91 - AT - Service Tax

Refund Unjust enrichment - There is no proof on records that the service tax element is not passed on to the other end party abroad. And further the claim for the period prior to Feb 2007 cannot stand since it is time barred under the provisions section 11B of Central Excise Act 1944 read with section 83 of Finance Act 1994 which the lower authority has correctly held. - The argument of the appellants that the payment of service tax is erroneous under mistake of law is not acceptable as ignorance of law is not an excuse. Moreover the appellants themselves agree to that the service tax paid by the appellant may not exactly tally with the amount of service tax paid. Appeal rejected

Summary

Issues:
Refund of service tax as recipient of services; Doctrine of unjust enrichment; Time-barred claim under section 11B of Central Excise Act, 1944.

Refund of Service Tax as Recipient of Services:
The appeal was filed against the Order-in-Appeal dated 24.11.2008, where the appellant claimed a refund of service tax paid prior to 13/2/2007, contending that as per reverse charge mechanism, they were not liable to pay service tax. The lower authorities issued a show-cause notice based on various grounds, including unjust enrichment. The refund claim was rejected by the adjudicating authority and subsequently by the Commissioner (Appeals) as the burden of unjust enrichment was not passed on to the clients abroad. The appellant argued that Rule 3(ii) was not applicable as the services were performed outside India and they, as recipients, could not have passed on the service tax incidence to their clients.

Doctrine of Unjust Enrichment:
The Commissioner (Appeals) held that the doctrine of unjust enrichment applied as the appellant had registered under service tax, collected service tax from a provider abroad, and paid it to the department without proof that the tax element was not passed on. The claim for the period before Feb 2007 was deemed time-barred under section 11B of Central Excise Act, 1944, and Finance Act, 1994. The argument of the appellants that the payment was erroneous under a mistake of law was rejected, emphasizing that ignorance of the law is not an excuse. The lack of evidence to show that the service tax element was not passed on to customers led to the rejection of the appeal.

Time-Barred Claim under Section 11B:
The Commissioner (Appeals) correctly held the claim for the period before Feb 2007 as time-barred under section 11B of Central Excise Act, 1944. The appellants' argument that the service tax paid may not exactly match the amount paid was deemed irrelevant. The absence of evidence to prove that the service tax element was not passed on to customers led to the dismissal of the appeal. The appellants failed to produce any record or evidence to support their claim, resulting in the rejection of the appeal by the Commissioner (Appeals) and subsequently by the Appellate Tribunal CESTAT, Bangalore.

This detailed analysis of the judgment highlights the issues of refund of service tax, the application of the doctrine of unjust enrichment, and the time-barred nature of the claim under relevant legal provisions. The decision emphasizes the importance of providing evidence and following legal procedures in such cases to support refund claims and avoid dismissal based on lack of substantiation.