2011 (6) TMI 407 - AT - Service Tax

Input service distributor of GTA & BAS Services - refund claim on unjust enrichment - Held that - As recipient of GTA services the Service Tax burden has been borne by assessee as they have acted both as deemed service provider and recipient. However, the issue raised by the learned DR as to whether any credit has been taken in respect of Service Tax paid is very much relevant. Whether they have used GTA services for bringing inputs and taken credit and whether the Service Tax credit has been passed on to the buyers of finished goods in relation to which GTA service tax was paid are required to be considered by the original authority. The issue of unjust enrichment in respect of Service Tax provider and the service recipient has to be viewed in totally different context. In the present case as recipient, the appellants are required to pay service tax. If they have taken credit of service tax as doubted by the learned DR, the question of refund would not arise - remand the matter to the original authority for fresh consideration.

Summary

Issues:
Refund of Service Tax paid; Unjust enrichment; Credit of Service Tax; Burden of proof on the assessee.

Refund of Service Tax paid:
The appellant, a manufacturer of paints and registered as an 'inputs service distributor,' claimed a refund of Service Tax paid as a recipient of service amounting to Rs. 61,907/-, which was paid in excess during March 2007. The original authority rejected the refund claim citing unjust enrichment. The Commissioner (Appeals) accepted the contention on merits but upheld the unjust enrichment ground. The appellant argued that they only received GTA services and filed the refund for the excess amount paid provisionally. The learned advocate relied on a High Court decision stating that unjust enrichment should be viewed only from the manufacturer's point of view.

Unjust enrichment:
The appellant contended that as recipients of GTA services, no presumption should be made that they passed on the tax burden to others. The learned DR raised concerns about whether the refund related to transport of exempted goods and if the appellants passed on the Service Tax credit to buyers. The burden of proof was on the assessee to demonstrate that they did not pass on the tax burden. The Tribunal emphasized that the issue of unjust enrichment for a Service Tax provider and recipient should be viewed differently. The recipient is expected to bear the tax burden, and if they took credit for the tax, a refund would not be warranted.

Credit of Service Tax:
The Tribunal noted that the appellants paid the Service Tax as recipients of GTA services and acted as both service providers and recipients. However, the question of whether they took credit for the Service Tax paid and passed it on to buyers needed further examination. The original authority was directed to reconsider the matter, taking into account the observations made and granting the appellants a reasonable opportunity to be heard.

In conclusion, the Tribunal set aside the orders of the Commissioner (Appeals) and the original authority, remanding the matter for fresh consideration to determine the refund claim and unjust enrichment issue based on the evidence to be produced by the appellants.