2006 (1) TMI 44 - AT - Service Tax

Service tax was paid on commission for the period July 01 to March 02 wrongly under Management Consultant . Once the asssessee fails to prove there is no unjust enrichment, no refund claim shall be allowed on the ground that the said amount is not service tax but mere collection of amount.

Summary

Issues:
1. Refund claim for erroneous Service tax on Sales Commission.
2. Applicability of unjust enrichment principle.
3. Classification of services under "Consulting Engineer" and "Management Consultancy."
4. Evidence to support the nature of payments made.

Analysis:
1. The respondents filed a refund claim for Service tax paid on Sales Commission from July '01 to March '02. The Tribunal noted that the customers had paid the entire amount, including the service tax, indicating that the tax burden had been passed on. This led to the application of the principle of unjust enrichment, denying the refund claim.

2. The respondents argued that the payments received were for sales commission, not for Management Consultancy services. They contended that the Commissioner's assertion of tax payment on sales commission was based on assumption, especially since the tax on commission agents became applicable only from 1-7-03. The Tribunal found the Commissioner's observations erroneous and upheld the Order-in-Original, denying the refund claim.

3. The Department maintained that the payments made were for Management Consultancy services, not sales commission. The respondents failed to provide evidence to support their claim, leading to the rejection of their argument. The Tribunal disagreed with the Commissioner (Appeals) and allowed the revenue appeal, setting aside the impugned order.

4. The Tribunal concluded that the payments made during the period in question were indeed related to Service tax for Management Consultancy services. Since the respondents could not substantiate their position with evidence, the refund claim was rejected. The Tribunal upheld the Order-in-Original, emphasizing the lack of proof from the respondents to counter the Department's position.