2010 (1) TMI 130 - AT - Service Tax

Consulting Engineering Service import of service demand confirmed by the original authority set aside by the commissioner (Appeals) and CESTAT assessee filed refund claim dated 1.9.2004 of the service tax and interest already paid by them. After issuing show cause notice dated 15.2.2005, the original authority by order dated 10.1.2006 sanctioned the refund claim but ordered the same to be deposited to the Consumer Welfare Fund. - Commissioner (Appeals) sanctioned the refund in case. Held that The ground that the appellants availed of the same as Cenvat credit is also not sustainable as the appellants vide letter dated 28.8.2004 informed the department that they had re-paid the said availed service tax along with interest to the department it cannot be said by any stretch of imagination that the burden of service tax amount to be refunded has been passed on to any other person or customers as service tax has gone in the excisable goods sold by the appellants. - whatever payment was made did not relate to service tax at all. It was merely an erroneous collection by DOT and payment by the appellants. Therefore, provisions relating to refund of service tax, including those relating to unjust enrichment, cannot have any application to the return of the amount in question refund is allowed

Summary

Issues Involved:
1. Appeal by the Department against the order of the Commissioner (Appeals) regarding service tax on consulting engineering services.
2. Refund claim filed by the respondents for service tax and interest already paid.
3. Dispute over unjust enrichment and cash refund.

Analysis:

Issue 1: Appeal against Commissioner (Appeals) Order
The Department appealed against the Commissioner (Appeals) order confirming the demand of service tax on consulting engineering services received from an Overseas Company. The Tribunal upheld the Commissioner's decision, rejecting the Department's appeal. The Department argued unjust enrichment due to availing Cenvat credit, passing on the tax burden to customers. However, the respondents contended they were service tax recipients, not providers, and had not passed on the burden. The Commissioner (Appeals) supported the respondents' claim, emphasizing that service tax was not applicable to the technical know-how received and paid by the respondents. The Tribunal found no grounds to interfere with the Commissioner's decision, ultimately rejecting the Department's appeal.

Issue 2: Refund Claim
The respondents filed a refund claim for the service tax and interest paid. The original authority sanctioned the refund but directed it to be deposited in the Consumer Welfare Fund. However, the Commissioner (Appeals) ordered a cash refund, rejecting unjust enrichment. The respondents supported the cash refund, providing evidence that the burden of service tax was not passed on. The Tribunal agreed with the Commissioner (Appeals) that the respondents were eligible for the refund claim, as they had not passed on the tax burden and were not required to pay service tax as recipients. The Tribunal cited a previous case to support the decision that erroneous collections could be refunded, as service tax was not leviable during the relevant period. The appeal for the cash refund was upheld, and the cross-objection by the respondents was disposed of in their favor.

In conclusion, the Tribunal affirmed the Commissioner (Appeals) decision, rejecting the Department's appeal and supporting the cash refund to the respondents. The judgment emphasized the distinction between service tax recipients and providers, as well as the inapplicability of unjust enrichment in this case.