2016 (1) TMI 822 - AT - Service Tax

Refund - unjust enrichment - service tax was paid wrongly - appellant contended that CBEC Circular No. 108/02/2009-ST dated 29.1.2009 clarified that the builders/ promoters are not liable to pay service tax under the category of construction of complex service defined under Section 65(105) - Held that - Commissioner (Appeals) has held that the appellant was not promoter/builder of residential complex only on the ground that the appellant made payment of service tax under No. 00440290 which is applicable to industrial construction service and not under Code No. 00440334 which is applicable to residential complex service. We are unable to accept this ground as a valid ground for the said purpose in the absence of any other evidence to support the conclusion of the Commissioner (Appeals), that appellant was not promoter/builder of residential complex because payment of service tax under code number assigned to Industrial Construction Service cannot be a clinching evidence to discard the assertion of the appellant that it was promoter/builder of residential complex. It is evident that the amount of service tax of which refund was sought was indeed not payable by the appellant. As regards the issue of unjust enrichment, we find that the Commissioner (Appeals) has recorded cogent finding regarding the failure of the appellant to discharge the onus that the burden of service tax was not passed on to others. The CA certificate submitted by the appellant to support of its contention that the burden of service tax was not passed on had no contact number and also did not contain the CA s membership number assigned by the Institute of Chartered Accountants of India. In the light of the above, we hold that the impugned service tax (of which refund has been sought) was not payable and allow the appeal by way of remand to the Commissioner (Appeals) for de novo adjudication only for the limited purpose of considering the appellant s submissions with regard to discharge of its burden to demonstrate that the burden of impugned service tax was not passed on to others. - Decided partly in favor of assessee.

Summary

Issues:
Appeal against rejection of refund application for service tax, Applicability of service tax on builder/promoter of residential complex, Burden of proof on unjust enrichment.

Analysis:

Issue 1: Appeal against rejection of refund application for service tax
The appeal was filed challenging the rejection of a refund application for service tax amounting to Rs. 2,03,851 for the period of April 2006 to September 2006. The Commissioner (Appeals) upheld the original order rejecting the refund, citing that the service tax was payable, and the burden of proof regarding unjust enrichment was not discharged by the appellant.

Issue 2: Applicability of service tax on builder/promoter of residential complex
The appellant argued that as per CBEC Circulars, builders/promoters are not liable to pay service tax under the construction of complex service category. Circulars like No. 332/35/2006-TRU and No. 108/02/2009-ST were cited to support this claim. The Circulars clarified that service tax is not applicable if the builder undertakes construction work without engaging other service providers for a residential complex. The Tribunal found merit in the appellant's argument based on the Circulars and held that the service tax sought as a refund was not payable.

Issue 3: Burden of proof on unjust enrichment
The Commissioner (Appeals) raised the issue of unjust enrichment, stating that the appellant failed to prove that the burden of service tax was not passed on to others. The appellant submitted a CA certificate to support their claim, but the Commissioner found it insufficient due to missing details. The Tribunal agreed that the burden of proof was not adequately discharged by the appellant. However, considering the appellant's assertion that they can provide additional evidence, the Tribunal remanded the case back to the Commissioner (Appeals) for further adjudication on this specific issue.

In conclusion, the Tribunal allowed the appeal by remanding the case to the Commissioner (Appeals) for reevaluation solely on the aspect of demonstrating that the burden of service tax was not transferred to others. If the appellant successfully proves this, a refund is to be granted. The appellant is granted an opportunity to present additional evidence and be heard in this regard.