2013 (4) TMI 553 - AT - Service Tax

Refund claim - as per assessee the construction and erection of Vermi Composite Plant for Urban local bodies for Municipal Solid Waste Management are exempt from Service Tax - rejection of claim by dept. as claimant has failed to submit the copy of agreement with their client and any documentary evidence so as to prove that the services rendered by them are non-taxable in nature - Held that - The first appellate authority vide his letter dt.29.09.2011, has called for the copy of the agreement with the ULB/GUDC, copy of approved plan of the building or civil construction, balance sheet of GUDC, may be for ascertaining whether GUDC was involved in some commercial activity or not. The appellant has not provided these documents to the Commissioner (Appeals), but has produced the same before the Tribunal. Thus the lower authorities should be given an opportunity to consider the issue based upon the documents. Thus remand the matter back to first appellate authority to re-consider the issue afresh, after following the principles of natural justice.

Summary

Issues:
1. Rejection of refund claim under Section 11B of Central Excise Act, 1944 for construction services.
2. Discrepancies in the refund claim submission.
3. Unjust enrichment and passing on of Service Tax to clients.
4. Appeal against the order-in-original and first appellate authority's decision.
5. Interpretation of Service Tax liability for government undertakings.

Analysis:
1. The judgment deals with the appeal against the rejection of a refund claim under Section 11B of the Central Excise Act, 1944, made applicable to Service Tax matters. The appellant, engaged in construction services, filed a refund claim believing the services provided were exempt from Service Tax. However, the claim was rejected due to various discrepancies identified by the adjudicating authority.

2. The discrepancies included the failure to submit the agreement with the client, inconsistency in the refund amount claimed versus the submitted challan, lack of evidence regarding challenging self-assessment, and inability to prove that the Service Tax incidence was not passed on to clients. The first appellate authority upheld the rejection, leading to the appellant's appeal.

3. The issue of unjust enrichment arose as the appellant claimed not to have passed on the Service Tax to clients. However, the absence of concrete evidence supporting this claim led to the rejection of the refund. The appellant's argument regarding the nature of the construction project and government undertaking status was considered in light of relevant circulars and legal precedents.

4. The judgment highlights the arguments presented by both sides, with the appellant's representative emphasizing the non-commercial or industrial nature of the construction project for a government enterprise. The Additional Commissioner argued for unjust enrichment and lack of evidence supporting the appellant's claims. The Tribunal observed the need for documents to be considered by lower authorities for a comprehensive review.

5. Ultimately, the Tribunal set aside the impugned order and remanded the matter to the first appellate authority for a fresh consideration based on the provided documents. The decision aimed to ensure a fair review following the principles of natural justice without expressing a definitive opinion on the case's merits.