2016 (8) TMI 591 - AT - Service Tax

Refund of service tax paid on GTA services - service tax was paid directly by the provider of services whereas it was the liability of the recipient under reverse charge can the liability be shifted to others by means of a private contract/agreement - transport of crushed stone, dust and coarse sand - Rule 2 (1)(d)(v) of Service Tax Rules, 1994 Held that - Both sides agree that the service recipient is body corporate and paid freight. Once service recipient is a body corporate and paid freight, as per the aforesaid Rule 2(1)(d)(v) ibid, the person liable to pay service tax in relation to taxable service provided by the appellant is the service recipient. Thus, it is clear that the legal liability to pay service tax does not rest on the appellant. The agreement is of no relevance. Section 67 (2) of the Finance Act, 1994 - gross amount charged is inclusive of service tax the value of such service shall be such an amount as with additional of tax payable is equal to the gross amount charged Held that - Section 67(2) ibid is not relevant in the present case as it deals with the valuation of service which is not the issue in this case. Service tax not payable case remanded back appeal allowed refund granted - principle of unjust enrichment to be satisfied.

Summary

Issues involved:
Refund claim rejection, Liability to pay service tax, Unjust enrichment, Interpretation of Service Tax Rules

Refund claim rejection:
The appellant, a transport operator, had a contract with a company exempting them from service tax as per NHAI guidelines. The audit team found the appellant wrongly claimed exemption and requested them to discharge the service tax liability. The appellant argued that as per the agreement and Service Tax Rules, the liability to pay service tax was on the service recipient, not them. Despite depositing the amount under duress, their refund claim was rejected. The tribunal analyzed the agreement and rules, concluding that the appellant was not liable to pay service tax, entitling them to a refund.

Liability to pay service tax:
The Departmental Representative argued that the liability to pay service tax cannot be shifted by a private contract. They cited Section 67(2) of the Finance Act, stating that if service tax is not separately charged, it should be recovered from the service provider. However, the tribunal referred to Rule 2(1)(d)(v) of Service Tax Rules, determining that the liability to pay service tax in this case rested on the service recipient, as they were a body corporate and paid freight. The tribunal held that the appellant was not liable to pay service tax.

Unjust enrichment:
The appellant contended that as they did not pass on the amount and deposited it under duress, unjust enrichment was not involved. The tribunal considered this argument along with the analysis of the liability to pay service tax, ultimately allowing the appeal and remanding the case for refund sanctioning, ensuring compliance with the principles of unjust enrichment.

Interpretation of Service Tax Rules:
The tribunal analyzed the agreement between the parties, relevant Service Tax Rules, and the statutory provisions governing service tax liability. They emphasized that the legal liability to pay service tax cannot be shifted by mutual agreement between private parties. The tribunal clarified that the agreement stating the appellant would pay service tax if applicable did not determine the actual liability under the law. By interpreting the Service Tax Rules and relevant provisions, the tribunal concluded that the appellant was not liable to pay service tax, leading to the allowance of the appeal and the remand for refund processing.