2011 (9) TMI 543 - AT - Service Tax

Refund of Service Tax paid under Reverse Charge from August, 2002 to August, 2004 - Refund Claim - Held That - in appellant s own case for the same period (2007 -TMI - 1523 - CESTAT, MUMBAI), it was held that the services availed by the appellant are not taxable service - refund to be allowed. Unjust Enrichment - The issue of unjust enrichment has not been dealt with - Held That - Case referred back to look into the issue.

Summary

Issues: Refund claim denial based on unjust enrichment and liability to pay service tax as a service recipient.

Analysis:
The appellant filed an appeal against the order denying their refund claim for service tax paid on technical know-how services availed from a foreign service provider. The appellant contended that they were not liable to pay service tax as a service recipient, citing a previous Tribunal order in their favor for the same period. The appellant argued that if liable, service tax payment should commence from 01/01/2005. However, the issue of unjust enrichment was not addressed by the adjudicating authority. The appellant requested a remand for examination of unjust enrichment applicability.

The Revenue representative agreed with the appellant's counsel on the need for further examination of the unjust enrichment issue. Upon review, the Tribunal found that the merit of the case favored the appellant regarding service tax liability. The only unresolved issue was the applicability of the doctrine of unjust enrichment, which was not addressed by the lower authorities. Consequently, the Tribunal set aside the impugned order and remanded the matter to the original adjudicating authority for a thorough examination of unjust enrichment, providing the appellants with a reasonable opportunity to present their case within three months of the order receipt.

In conclusion, the appeal was disposed of by sending the matter back to the adjudicating authority for a detailed assessment of the unjust enrichment issue, while confirming the appellant's position on service tax liability for the availed services.