2012 (6) TMI 190 - AT - Service Tax

Refund claim rejected on ground of unjust enrichment - Practising chartered account - Held that - It is observed that appellant was rendering different types of services during the relevant period and wherever the service rendered was a taxable service, the invoice was showing the service tax separately and paying the same to the department. Where the appellant felt that the service was not liable to service tax, no service tax was collected. This itself is sufficient to show that the appellant had not collected the amount from the customers. Further, appellant has rightly shown it as an expenditure since the amount was not collected from the customers. Therefore, appellant is eligible for the refund claimed - Decided in favor of assessee.

Summary

Issues:
1. Refund claim rejection based on unjust enrichment.

Analysis:
The case involved an appeal by a firm of chartered accountants regarding a refund claim of service tax paid amounting to Rs.21,102, which was rejected on the grounds of unjust enrichment. The appellant contended that they had not collected the service tax from their customers for certain services rendered, and hence, the refund claim should be admissible. The primary issue was whether the appellant had indeed passed on the burden of service tax to their customers or not.

The judge considered various arguments presented by both sides, including the nature of the amount paid (duty or deposit), the treatment of the amount in the balance sheet, and the invoicing practices related to service tax. However, the judge opined that it was unnecessary to delve into all these aspects extensively. The judge agreed with the appellant's stance that they only charged service tax for taxable services and did not collect it when the service was not taxable, as reflected in their separate invoicing practices. This, in the judge's view, demonstrated that the appellant had not passed on the service tax burden to their customers.

Furthermore, the judge addressed the issue of the amount being shown as an expenditure in the balance sheet, emphasizing that it was appropriate since the amount was not recovered from customers. Although the appellant had not categorized the amount as receivable, they relied on a precedent where a similar treatment was accepted. The judge referenced the Tribunal's decision in the case of Sunbeam Auto Ltd., where it was noted that keeping the amount in the account as sales expenses did not warrant denial of the refund claim based on unjust enrichment. Consequently, considering the circumstances and the amount involved, the judge ruled in favor of the appellant, allowing the appeal and granting the refund claimed.

In conclusion, the judgment centered on the crucial issue of unjust enrichment concerning the refund claim of service tax paid by the chartered accountants' firm. The judge's analysis focused on the appellant's invoicing practices, treatment of service tax in the balance sheet, and the absence of passing on the tax burden to customers to determine the admissibility of the refund claim. By examining these factors and relevant precedents, the judge concluded that the appellant was eligible for the refund and granted the appeal with consequential relief.