2019 (6) TMI 18 - AT - Service Tax

Refund of service tax - rejection on the ground of time limitation and unjust enrichment - period 07.11.2005 to 26.07.2007 - HELD THAT - When the amount has been paid wrongly by mistake and when service tax is not leviable on the activity, the amount paid does not take the colour of service tax. If the amount paid which does not the colour of service tax, the same has to be refunded to the claimant subject to the provision of unjust enrichment. That for such refund, the time-limit under section 11B is not applicable - rejection of refund on the ground of time bar is unjustified. However, taking note of the fact that the refund is rejected not only on the ground of time bar but as well on unjust enrichment, the matter requires to be remanded to the adjudicating authority to reconsider this issue of unjust enrichment. Appeal allowed by way of remand.

Issues:
1. Whether the activities of the appellant fall under the category of Survey and Exploration of Mineral Services.
2. Whether the appellant is eligible for a refund of the service tax paid.
3. Whether the rejection of the refund claim on the grounds of time bar and unjust enrichment is justified.

Issue 1: Activities Classification
The appellant claimed a refund of service tax paid under Survey and Exploration of Mineral Services. The contract with ONGC involved services like camp mobilization, establishment, maintenance, topographic surveying, cable laying, and shot hole drilling. The appellant argued that these activities were not connected to Survey and Exploration of Mineral Services as defined in the law. The Tribunal analyzed previous cases and held that the appellant's activities did not fall under the taxable category, thus making them not liable to pay service tax during the disputed period.

Issue 2: Eligibility for Refund
The appellant contended that the service tax was paid under a mistake of law and should be refunded. They cited a case where a similar issue was decided in their favor. The Revenue representative supported the rejection of the refund claim based on the application of section 11B of the Act. However, the Tribunal referred to precedents and held that when service tax is paid under a mistake of law, the time limit under section 11B does not apply. The Tribunal emphasized that if the tax was paid wrongly and not leviable, it should be refunded, subject to unjust enrichment considerations.

Issue 3: Rejection of Refund
The original authority rejected the refund claim citing time bar and unjust enrichment. The Tribunal found the rejection on the grounds of time bar unjustified based on legal precedents. However, considering the unjust enrichment aspect, the matter was remanded to the adjudicating authority to reevaluate this issue. The Tribunal held that the appellant would be eligible for a refund if they can prove that it is not hit by unjust enrichment. The appeal was allowed, and the matter was remanded for further consideration with an opportunity for the appellant to provide evidence on unjust enrichment.

In conclusion, the Tribunal ruled in favor of the appellant, stating that their activities did not fall under the taxable category, making them eligible for a refund. The rejection of the refund claim based on time bar was found unjustified, but the issue of unjust enrichment required further assessment. The matter was remanded for reconsideration on the unjust enrichment aspect, providing the appellant with an opportunity to present evidence.

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