2021 (6) TMI 627 - AT - Service Tax

Refund of Service Tax paid - Construction of Services - non leviability of service tax prior to 01.06.2007 and restricting the demand for normal period post 01.06.2007 - principles of natural justice - HELD THAT - It stands abundantly clear that an amount of ₹ 8,01,765/- is the confirmed liability of the appellant in terms of order dated 16.12.2012. The refund to that extent plus interest of ₹ 55,422/- thereupon is therefore liable to be rejected. Accordingly, it is held that the appellant is not entitled for any refund claim post the sanction of refund of ₹ 30,55,791/-. The order of Commissioner (Appeals) stands modified to the effect that instead of ₹ 5,06,280/- to Government exchequer and attributing ₹ 3,50,907/- to unjust enrichment, the total refund claim of ₹ 8,57,187/- stands rejected - Appeal dismissed.

Summary

Issues:
Refund claim rejection based on unjust enrichment.

Analysis:
The appellant, engaged in providing construction services, filed a refund claim of &8377; 38,62,978/- along with interest, following a CESTAT order. The Adjudicating Authority sanctioned a refund of &8377; 30,05,791/- but rejected &8377; 8,57,187/- (&8377; 8,01,765/- + interest of &8377; 55,422/-) citing unjust enrichment. The Commissioner (Appeals) upheld the rejection, leading to the appellant's appeal before the Tribunal. The appellant argued that the refund rejection lacked evidence of unjust enrichment and invoked confusion surrounding tax liability at the relevant time. The respondent contended that the appellant failed to provide evidence of tax payment not being collected from customers, justifying the rejection.

The Tribunal noted that a show cause notice in 2010 demanded over &8377; 1 crore in service tax, leading to a subsequent rejection of a refund claim in 2011. After a CESTAT order in 2016 restricted the demand post 01.06.2007, the appellant filed the refund claim, which was proposed for rejection in 2018. The Commissioner (Appeals) rejected &8377; 3,50,907/- refund based on unjust enrichment. The Tribunal scrutinized the calculations and found discrepancies in the reasoning for rejecting the amount attributed to unjust enrichment. It concluded that the appellant's confirmed liability was &8377; 8,01,765/-, leading to the rejection of the refund claim beyond the sanctioned amount of &8377; 30,05,791/-.

Therefore, the Tribunal modified the order, rejecting the total refund claim of &8377; 8,57,187/- instead of attributing amounts to the Government exchequer and unjust enrichment. The appeal was dismissed, and the Commissioner (Appeals) order was modified accordingly.