2018 (9) TMI 1139 - AT - Service Tax

Refund claim - unjust enrichment - CBEC Circular No. 123/5/2010 T.R.U. dt. 24.05.2010 - whether there was any unjust enrichment? - Held that - There is no doubt that the nature of service rendered by the assessee was an exempted service which did not invite the levy of service tax and the original authority having been satisfied that a part of the claim for refund was eligible has sanctioned ₹ 3,33,299/- - There is no specific order with regard to the credit of the same into the Fund as required by Section 11B of the Central Excise Act, 1944, which means that the amount continued to remain only with the Revenue, which is clearly without authority of law. When there is no material on record to suggest that the appellant has, in fact, collected the service tax element despite the fact that the service was a non-taxable entity, the Revenue cannot retain the same without granting refund to the assessee. Appeal allowed.

Summary

Issues:
Claim for refund of service tax, unjust enrichment

Claim for Refund of Service Tax:
The appellant filed an appeal challenging the order of the Commissioner of Service Tax regarding a refund claim of service tax paid for a specific period. The appellant argued that they were not liable to pay service tax as they undertook exempted railway electrification work. The adjudicating authority found that the contract price included service tax and allowed a partial refund. The Revenue appealed, and the Commissioner of Service Tax set aside the refund order, leading to the appellant's appeal before the forum. The main issue was the eligibility for the refund amount.

Unjust Enrichment:
The crucial issue to be decided was whether there was unjust enrichment. The adjudicating authority did not find unjust enrichment, but the Commissioner of Service Tax held that since the amount collected included service tax, unjust enrichment applied. The Commissioner noted that the appellant did not counter this fact. The appellant argued that without proof of receiving the contract amount, the Department could not withhold the sanctioned refund, emphasizing the lack of legal authority for the Department to retain the amount.

Judgment:
After considering the contentions and records, it was established that the service provided was exempt from service tax. The original authority sanctioned a partial refund, but the Commissioner reversed this decision without specifying the credit into the Fund as required by law. The absence of evidence showing the appellant collected the service tax despite the service being non-taxable meant the Revenue could not retain the amount without refund. Consequently, the impugned order was set aside, restoring the original authority's decision and allowing the appeal to that extent.