2010 (6) TMI 150 - AT - Service Tax

Cum-duty- The appellant s only grievance is that they were never been unduly enriched at the cost of service recipient in view of the factual verification report obtained by the adjudicating authority. Held that- The material facts itself being providing answer from the above example, there is no need to dilate further. Consequently, appeal of the appellant is allowed and the appellant is entitled to the refund.

Summary

Issues:
1. Whether the appellant was unduly enriched at the cost of the service recipient.
2. Whether the appellant is entitled to a refund of Rs.1,74,062/-.

Analysis:
1. The appellant contended that they were not unduly enriched based on a factual verification report obtained from the Jurisdictional Range Superintendent. The Adjudicating Authority, after reviewing the report and a Chartered Accountant Certificate, found that the consideration received for services provided was inclusive of tax under the cum-duty principle. Any amount paid over and above the actual tax payable was deemed refundable, leading to a refund of Rs.1,74,062/-. The appellant argued that the conclusion of the Appellate Authority, without examining the factual report, was erroneous. The Appellate Tribunal noted that if no tax was collected from the consumer, the cum-duty price was presumed to be inclusive of tax. Therefore, any excess amount paid over the tax payable on the cum-duty value was not attributable to tax and was not realized by the appellant. As the material facts provided a clear answer, the appeal was allowed, and the appellant was entitled to the refund.

2. The Departmental Representative supported the decision of the Appellate Authority, stating that since the service tax burden had been passed on to the consumer, the appellant should not receive a refund. However, the Tribunal, after hearing both sides and examining the records, found that the appellant had not been enriched at the expense of the service recipient. The Tribunal emphasized that any amount paid over and above the tax liability, when no tax was collected from the consumer, was not attributable to tax and was not received by the appellant. Therefore, the appellant was entitled to the refund of Rs.1,74,062/- as determined based on the principles of tax calculation and the cum-duty value. The Tribunal allowed the appeal, granting the appellant the refund amount.

In conclusion, the Appellate Tribunal, after considering the arguments presented by both parties and examining the relevant documents and reports, held that the appellant was not unduly enriched at the cost of the service recipient and was entitled to the refund of Rs.1,74,062/- based on the principles of tax calculation and the cum-duty value.