2012 (5) TMI 471 - AT - Service Tax

Refund unjust enrichment - respondent is engaged in the providing Business Auxiliary Service and paying service tax thereon. The respondent claimed refund of service tax amounting to Rs.6,52,080/- paid by them for the period from 1.12.2007 to 31.8.2008 on the ground that the services rendered by them amounts to export of services in terms of Rule 3(2) of the Export of Service Rules,2005. The refund claim was rejected on the doctrine of unjust enrichment Held that - in the case of Sparkler Ceramics Pvt. Ltd (2011 - TMI - 203997 - CESTAT, MUMBAI - Central Excise) unjust enrichment will not be applicable to this case as it involves export of goods. Commissioner (Appeals) order is upheld and Revenue s appeal is dismissed.

Summary

Issues:
Appeal against rejection of refund claim based on unjust enrichment doctrine and interpretation of Notification No. 41/2007-ST dated 06.10.2007.

Analysis:
The case involved a dispute where the respondent, engaged in providing Business Auxiliary Service, claimed a refund of service tax paid, amounting to Rs.6,52,080, for the period from 1.12.2007 to 31.8.2008, on the grounds that the services rendered by them constituted export of services under Rule 3(2) of the Export of Service Rules, 2005. The refund claim was initially rejected based on the doctrine of unjust enrichment. However, the Commissioner (Appeals) allowed the refund claim, stating that the ground of unjust enrichment was not part of the show-cause notice, which led to the appeal by the Revenue.

The respondent argued that the proviso to Section 11B(2) of the Central Excise Act, 1944, excluded the rebate of duty from the doctrine of unjust enrichment. They also cited precedents, such as the Hindustan Unilever Ltd. case and the Sparkler Ceramics Pvt. Ltd. case, to support their contention that unjust enrichment does not apply to exported goods. On the other hand, the Revenue contended that the exemption claimed by the exporter should be in the form of a refund under Section 11B of the Central Excise Act, 1944, and that the doctrine of unjust enrichment applies to service tax matters under Section 83 of the Finance Act, 1994.

Upon careful consideration, the Tribunal found that the Commissioner (Appeals) correctly set aside the lower adjudicating authority's order, as the grounds of unjust enrichment and the inapplicability of the refund under Notification No. 41/2007-ST were not part of the show-cause notice. The Tribunal referred to previous judgments, including the Hindustan Unilever Ltd. case and the Sparkler Ceramics Pvt. Ltd. case, which supported the view that unjust enrichment does not apply to exported goods. Therefore, the Tribunal upheld the Commissioner (Appeals) order, dismissing the Revenue's appeal.

In conclusion, the judgment clarified that the doctrine of unjust enrichment does not apply to exported goods and that the grounds for refund must align with the show-cause notice. The decision emphasized the importance of following legal procedures and interpreting relevant provisions accurately in matters concerning service tax refunds and export of services.