2018 (6) TMI 802 - AT - Service Tax

Refund claim - rejection on the ground of unjust enrichment and time limitation - Commercial & Industrial Construction Services - Held that - The chartered accountant s certificate alone cannot be relied upon in the absence of any corroborative evidence to rule out the doctrine of unjust enrichment. - The appellant did not produce on record any document to show that they revised their bills or refunded them the element of service tax received by the appellants during the course of rendering the taxable service. Appellant s bank statement, sale invoices or any other documentary evidence in their favour that they have not collected the element of service tax from their service recipients, have not been brought on record either before the Adjudicating Authority or before the Commissioner (Appeals) or before this Tribunal - matter remanded back to the Adjudicating Authority for denovo adjudication on all issues including the issue of limitation, after hearing the appellant - appeal allowed by way of remand.

Summary

Issues Involved:
Refund claim rejection based on unjust enrichment and limitation period violation.

Detailed Analysis:

Issue 1: Unjust Enrichment
The Appellant filed a refund claim for service tax amounting to ?28,51,165 on the grounds that the construction activities for a university and society were not meant for commercial or industrial use. The Adjudicating Authority rejected the claim citing unjust enrichment, as the Appellant had transferred the burden of service tax to their client. The Commissioner(Appeals) upheld this decision, stating that there was no evidence of the Appellant refunding the service tax element to the service recipients. The Appellant argued that the university/society were non-commercial entities, but the burden of proof lay with them to show they did not collect the service tax element. The Tribunal found that the Appellant did not provide sufficient evidence to rule out unjust enrichment, leading to the remand of the case for further adjudication.

Issue 2: Limitation Period
The Commissioner(Appeals) also dismissed the appeal on the grounds of limitation, stating that the refund claim was filed after the one-year period from the date of service tax payment had expired. The Appellant filed the claim on 23.06.2011 for the period March 2008 to March 2010, exceeding the time limit for filing. The Tribunal noted the time-barred nature of the claim but decided to remand the case for a fresh adjudication on all issues, including the limitation aspect, after hearing the Appellant. The Tribunal emphasized that all issues were to be reconsidered, keeping them open for further examination.

In conclusion, the Tribunal allowed the appeal by way of remand, setting aside the previous orders and sending the case back to the Adjudicating Authority for a fresh review. The decision highlighted the importance of providing concrete evidence to support refund claims and the need to adhere to statutory time limits for filing such claims.