2018 (3) TMI 997 - AT - Service Tax

Refund claim - service tax paid on the discounts passed on to their clients out of the discounts received by them from print/visual media - Held that - there is no infirmity in the impugned order by which the Commissioner (Appeals) has set aside the Order-in-Original on the ground that the aspect of unjust enrichment has not been considered by the original authority - subsequent to the decision of the Commissioner (Appeals), the original authority vide Order dated 30.12.2016 has examined in detail the aspect of unjust enrichment - appeal dismissed - decided against Revenue.

Summary

Issues Involved:
Appeal against rejection of refund claim for service tax paid on discounts passed to clients.

Analysis:
The appeal was filed by the Revenue against the Commissioner (Appeals) order setting aside the Order-in-Original rejecting a refund claim. The appellants, service providers under Advertising Agency Service, sought a refund of &8377;8,86,557 for service tax paid on discounts passed to clients from print/visual media for Jan-Mar 2011. The Revenue argued that the tax burden was passed on to clients, so the refund claim rejection was justified. The Revenue contended that the case-law cited by the assessee was not applicable. However, the counsel for the assessee defended the order, stating that the aspect of unjust enrichment was not discussed in the Order-in-Original, leading to its reversal by the Commissioner (Appeals).

The Revenue's position was that the impugned order was contrary to facts and law as the tax burden was passed on to clients. The Commissioner (Appeals) was criticized for setting aside the Order-in-Original. On the other hand, the counsel for the assessee argued that the impugned order was sound and supported by the lack of discussion on unjust enrichment in the original order. The counsel cited relevant decisions to support their stance. Subsequent to the Commissioner (Appeals) decision, the original authority examined unjust enrichment and rejected the refund claim in a subsequent order.

The Tribunal upheld the Commissioner (Appeals) decision, finding no fault in setting aside the Order-in-Original due to the lack of consideration of unjust enrichment. The subsequent examination by the original authority on unjust enrichment further supported the decision. Therefore, the appeal by the Revenue was dismissed, and the impugned order was upheld.