2017 (2) TMI 537 - AT - Service Tax

Refund claim - unjust enrichment - appellant contended that the amount so collected does not have the color or character of service tax for the reason that w.e.f. 01.07.2012, the said service fall in the negative list and are not taxable. The appellant having collected the tax erroneously has deposited the same to the Central Government. Thereafter they have filed the refund claim stating that there was no liability to make the payments as the services are not taxable. Held that - even if credit notes are issued, the assessee has to establish that duty burden has not been passed on - the appellant has furnished documents to show that the amount collected has been adjusted. The amount was collected as service tax on the mistaken belief that the services were taxable. The amount however does not have the colour or character of tax for the purpose of levy by the department. Further, appellant has adduced evidence to show that the amount collected is adjusted - the rejection of refund claim is unjustified - appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against rejection of refund claim due to service tax collected erroneously from M/s Uni Ads and M/s Swamy Ads, leading to unjust enrichment.

Analysis:
1. The appellant, registered for services under "sale of space or time for advertisement," collected service tax from M/s Uni Ads and M/s Swamy Ads for July-August 2012 but later discovered these services were non-taxable. The refund claim of ?6,87,528 was rejected by the Commissioner (Appeals) citing unjust enrichment.

2. The appellant argued that the tax collected was not passed on, supported by declarations from M/s Uni Ads and M/s Swamy Ads showing adjustments made to license fees. They contended that the services were non-taxable, citing the case of M/s Idea Cellular Ltd. Vs Union of India. The Ld. Consultant relied on judgments stating erroneous levies are refundable without limitation under Section 11B.

3. The Respondent contended that tax burden was passed on, invoking section 73(A)(2) of the Finance Act. Refund was denied based on the principle of unjust enrichment, supported by the decision in M/s Mukund Ltd. Vs CCE, Mumbai-VI.

4. The Tribunal noted that the collected amount lacked the character of service tax as the services were non-taxable post-July 2012. Refunds for erroneously paid taxes were discussed, referencing the GB Engineers case and the limitations of Section 11B.

5. The Tribunal referred to the GB Engineers case, emphasizing that amounts paid under mistake of fact or law are not covered by Section 11B. The judgment in Idea Cellular Ltd. highlighted the illegality of tax collection without authority, allowing refunds even without challenging assessment orders.

6. The appellant demonstrated that the service tax burden was not passed on through adjustments with M/s Uni Ads and M/s Swamy Ads, supported by declarations. The Tribunal found the rejection of the refund claim unjustified and allowed the appeal with consequential reliefs.

This detailed analysis of the legal judgment showcases the arguments presented by both parties, the relevant legal precedents cited, and the final decision of the Tribunal in favor of the appellant.