2014 (12) TMI 826 - AT - Service Tax

Abatement Notification No. 15/2007-S.T. dated 4-4-2007 - tour operator service - Remission of service tax - Refund claim - Unjust enrichment - Bonafide belief that assessee not bound to pay service tax - Passing of incidence duty to consumers - Held that - Appellate Commissioner concluded that analysis of the invoices issued by the appellant clearly disclosed that no Service Tax component was included in and collected from the customers by the assessees; that the assessees had remitted Service Tax by treating the gross amount received as inclusive of Service Tax; that in an agreement with Oil India Ltd. the recitals disclose that the agreed rates were inclusive of all the taxes leviable; but however there was no specific collection of Service Tax. Contract price is inclusive of duty there cannot be unjust enrichment. there is no error vitiating the order of the learned appellate Commissioner warranting appellate interference. On the aforesaid analysis we find no merits in Revenue s appeals which are accordingly rejected - Decided against Revenue.

Summary

Issues:
Refund of excess Service Tax remitted, unjust enrichment, interpretation of abatement Notification No. 15/2007-S.T., applicability of earlier judgments on Central Excise matters to Service Tax.

Refund of Excess Service Tax Remitted:
The assessees claimed refund of excess Service Tax remitted during a specific period, arguing that they had remitted tax on the gross amount received for tour operator services, while only 40% of the gross value was taxable as per Notification No. 15/2007-S.T. The Revenue issued a show cause notice on unjust enrichment grounds, alleging that the Service Tax liability had been passed on to customers. The assessees contended that they were not aware of their tax liability initially and had not collected any Service Tax from customers. Despite this, the Adjudicating Authority rejected the refund claim, deeming the Service Tax element to have been passed on to customers through invoices.

Unjust Enrichment:
The issue of unjust enrichment arose when the Revenue argued that the Service Tax liability had been passed on to customers, thus the refund should be credited to the consumer welfare fund. The assessees, however, maintained that they had not collected any Service Tax from customers and had remitted the tax on the gross amount received, believing it to be inclusive of the tax component. The appellate Commissioner found that no Service Tax component was explicitly included or collected from customers based on an analysis of the invoices issued by the assessees.

Interpretation of Abatement Notification:
The interpretation of Notification No. 15/2007-S.T. was crucial in determining the taxable amount for tour operator services. The assessees argued that they had remitted tax on the entire gross amount received, while only 40% was taxable. The appellate Commissioner analyzed the invoices and agreements to conclude that the contract prices were inclusive of all taxes, but there was no specific collection of Service Tax from customers. This interpretation was supported by previous Tribunal decisions.

Applicability of Earlier Judgments:
The Adjudicating Authority distinguished earlier Tribunal judgments related to Central Excise matters from the present Service Tax issue. The appellate Commissioner, however, relied on previous Tribunal decisions to support the assessees' claim that there was no unjust enrichment since the contract prices were inclusive of taxes. The appellate Tribunal upheld the Commissioner's order, finding no error warranting appellate interference and rejecting the Revenue's appeals.