2015 (12) TMI 878 - AT - Service Tax

Denial of refund claim - Unjust enrichment - Held that - Evidence produced by the appellant for payment of service tax and a copy of the General Ledger is sufficient to show that the amount has been paid by the appellant. Since service tax was not collected separately during the relevant period from the appellant, the amount received by the service provider is treated as cum-tax amount. The question is not whether the Rule 4A of the Service Tax Rules is observed or not. The solution is penalty on the service provider and not rejection of refund claim to the client. Moreover, the appellant has claimed that invoice was issued by the service provider only when the construction was over and he produced a copy of the invoice now. Hence this deficiency is made good. In these circumstances, it cannot be said the appellant has not borne the liability of service tax - Decided in favour of assessee.

Issues:
1. Rejection of refund claim for service tax paid by a builder to a construction group.
2. Commissioner's demand for the refund amount due to lack of evidence of payment of service tax.
3. Applicability of Rule 4A of the Finance Act, 1994 in the case.
4. Admissibility of the refund claim based on evidence provided by the appellant.

Analysis:
1. The appellant, a builder, filed a refund claim for service tax paid to a construction group for work done on an independent house. The claim was initially rejected by the Assistant Commissioner on the grounds that the service tax liability had been passed on to customers. The construction group did not appeal this decision but advised the appellant to file a refund claim, which was later sanctioned. However, the Commissioner proposed a revision of the order, leading to the demand for the refund amount.

2. The Commissioner demanded the refund amount due to the lack of evidence of service tax payment by the appellant and non-production of necessary documents. The appellant's counsel argued that evidence, such as payment certificates and a General Ledger from the construction group, supported the payment of service tax. An invoice issued after the completion of construction was also presented as evidence. The appellant contended that since the service was non-taxable, the issuance of an invoice was not required.

3. The Assistant Registrar reiterated the Commissioner's observations, claiming the refund claim was rightly inadmissible. However, the tribunal found the evidence provided by the appellant, including the General Ledger and the late-issued invoice, to be sufficient proof of payment of service tax. It was noted that since the service tax was not collected separately, the amount received by the service provider was treated as cum-tax amount. The tribunal emphasized that non-compliance with Rule 4A did not warrant the rejection of the refund claim but rather penalties on the service provider.

4. After considering both sides' submissions and reviewing the evidence, the tribunal concluded that the appellant had indeed borne the liability of service tax. The tribunal ruled in favor of the appellant, stating that the evidence presented was satisfactory and that the deficiencies had been rectified. Consequently, the appeal succeeded, and the appellant was granted consequential relief.

This detailed analysis of the judgment highlights the key issues, arguments presented, and the tribunal's decision, providing a comprehensive understanding of the legal proceedings.

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