2013 (5) TMI 205 - AT - Service Tax

Refund claim of the interest for the delayed payment of service tax paid (which was not payable) denied - Held that - Although the liability of service tax was not leviable as per the decision of the Indian National Ship Owners Association v. Union of India (2008 (12) TMI 41 - HIGH COURT OF BOMBAY) but the appellant did not take recourse of the claiming the refund of the service tax paid by them which implies that they have admitted their service tax liability. Once they have admitted their liability of service tax, the same should be paid along with interest as held in the case CCE v. SKF India Ltd. (2009 (7) TMI 6 - SUPREME COURT). Also see Vidyut Metallics Pvt. Ltd 2012 (11) TMI 376 - CESTAT, MUMBAI . Thus as the appellants had admitted their service tax liability by not claiming the refund of the same and also taken the credit of the same, therefore interest on delayed payment is payable by the appellant. Accordingly, the refund claim is not maintainable.

Summary

Issues:
Appeal against denial of refund claim for interest on delayed service tax payment.

Analysis:
The appellant, a manufacturer of motor vehicles, entered into a Technology Transfer Agreement for technical assistance and training. A show-cause notice was issued for service tax demand under 'Intellectual Property Rights' services. During the notice period, the appellant paid service tax and interest. Following a relevant court decision, the appellant filed a refund claim for the interest paid. The claim was rejected by lower authorities, leading to the appeal.

The appellant argued that the authorities erred in rejecting the refund claim based on limitation and failure to challenge the original order. Referring to a court ruling, the appellant contended that service tax was not leviable before a specific date, hence interest was not due. They claimed entitlement to a refund based on this interpretation, highlighting that they only sought a refund for interest, not the service tax itself.

The respondent maintained that the refund claim was time-barred, being filed three years after payment. The tribunal noted that the appellant had paid the service tax and interest for the relevant year, despite the court ruling on non-leviability before a certain date. By not claiming a refund for the service tax and taking credit for it, the appellant effectively admitted the liability. Citing legal precedents, the tribunal held that interest on delayed payment was indeed payable since the liability was acknowledged.

Consequently, the tribunal dismissed the appeal, affirming the decision to reject the refund claim. The appellant's acknowledgment of the service tax liability through inaction on refunding and crediting the amount led to the conclusion that interest on delayed payment was warranted, in line with legal principles and court decisions.

In summary, the tribunal upheld the denial of the refund claim for interest on delayed service tax payment, emphasizing the appellant's acknowledgment of the tax liability through their actions, despite arguments based on court rulings regarding non-leviability before a specific date.