2011 (1) TMI 677 - AT - Service Tax

Refund of service tax paid in excess without availing the abatement under Notification No.13/2008-ST dt. 1/3/2008 - Unjust enrichment - The entire case needs to be appreciated by merits based upon the Chartered Accountant certificate and the balance sheet which indicate the amount as service tax is shown as loans and advances - matter remanded back.

Summary

Issues involved: Refund of excess service tax paid without availing abatement.

Analysis:
The Appellate Tribunal considered a stay petition filed by the assessee against an Order-in-Appeal. The Tribunal decided to dispose of the appeal itself after hearing both sides and allowing the application for waiver of pre-deposit. The issue at hand pertained to the refund of service tax paid in excess by the assessee without utilizing the abatement provided by a specific notification. The Tribunal noted that the assessee had submitted a Chartered Accountant certificate to the adjudicating authority and the Commissioner (Appeals), indicating that the excess service tax paid had not been passed on to customers. The Tribunal highlighted the importance of evaluating the case based on the certificate and the balance sheet, which showed the service tax amount as loans and advances. Without expressing any opinion on the case's merits, the Tribunal remitted the matter back to the adjudicating authority for a re-consideration of the issue. The Tribunal emphasized the need for the adjudicating authority to review various case laws presented and ensure the principles of natural justice were followed, providing a fair opportunity to the appellant before reaching a conclusion. The appeal was allowed by way of remand to the adjudicating authority, and the stay petition was also disposed of accordingly.