2008 (5) TMI 98 - AT - Service Tax

Denial of cash refund unjust enrichment relevant account books not examined properly original copy not produced by appellants - what was produced was an unaudited account copy of service tax - only Xerox copies of the books of accounts were produced - appeal is allowed by way of remand - original authority is directed to pass fresh order on the question of unjust enrichment

Summary

Issues:
Challenge to denial of cash refund of service tax based on unjust enrichment.

Analysis:
The appeal before the Appellate Tribunal CESTAT, Chennai involved a challenge against the denial of cash refund of service tax by the lower authorities. The appellants had paid service tax on Clearing and Forwarding Agent's Service during the disputed period. They claimed a refund based on a judgment of the Hon'ble Supreme Court. To establish that there was no unjust enrichment, the appellants submitted various documents, including certificates from the Clearing & Forwarding Agent and a Chartered Accountant, along with financial statements. The original authority sanctioned the refund claim on merits but denied cash refund citing unjust enrichment. The Commissioner (Appeals) upheld this decision, leading to the present appeal.

The learned counsel for the appellants argued that the rejection of the Chartered Accountant's certificate lacked a valid reason. They contended that the consignment agent's certificate and the financial records were sufficient evidence that the service tax burden was not passed on. They further requested an opportunity to produce the original audited books of accounts for re-examination. On the other hand, the JDR argued that the Chartered Accountant's certificate, without supporting invoices, should be rejected. They cited a Tribunal's decision and an Apex Court judgment to support this position.

After considering the submissions, the Tribunal decided to remand the case to the original authority for further examination. The lower authorities had focused extensively on the Chartered Accountant's certificate without examining the relevant books of accounts. The Tribunal noted that only xerox copies of financial records were produced, and the originals were not submitted. The Tribunal accepted the counsel's undertaking to provide the original books of accounts for re-examination. Therefore, the Tribunal set aside the lower authorities' orders and allowed the appeal by remanding the case. The original authority was directed to reconsider the question of unjust enrichment after allowing the party to present additional evidence and be personally heard.