2015 (3) TMI 963 - AT - Service Tax

Denial of refund claim - whether the ticket issued by the appellant showing Conducted Tour shall ipso facto disentitle appellant to the exemption granted by Notification No. 20/2009-ST dated 7.7.2009 read with the Corrigendum issued by MF (DR) F. No. 334/8/2009/TRU dated 31.8.2009 and statutory provisions enacted in section 75 of Finance Act, 2011 - Unjust enrichment - Held that - Except interpreting the provisions of the Motor Vehicles Act, there is no material on record to show that appellant possessing the tourist vehicle permit had conducted tours issuing the ticket aforesaid. This does not deny the appellant to get the exemption granted by the notification and the statute. No doubt, conducted tour shall not get exemption under the notification but a point to point operation of the vehicle, even by the tourist vehicle is entitled to the exemption as envisaged by aforesaid notification. - In absence of any contrary evidence on record as to conduct of tour by the appellant in terms of the tickets aforesaid, the appeal succeeds. But the sub-section (3) of section 75 of Finance Act, 2011 read with the Explanation thereunder requires the eligible refund to meet the test of unjust enrichment. Therefore, the matter has to go back to the learned adjudicating authority on this limited point to examine whether the appellant has crossed the bar of unjust enrichment. If he is satisfied, he shall grant refund. - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
Whether the ticket showing "Conducted Tour" disentitles the appellant to exemption under Notification No. 20/2009-ST and statutory provisions enacted in section 75 of Finance Act, 2011.

Analysis:
The main issue in this appeal was whether the ticket issued by the appellant, indicating a "Conducted Tour," would automatically disqualify the appellant from the exemption provided under Notification No. 20/2009-ST and related statutory provisions. The appellant argued that although the tickets mentioned "Conducted Tour," in reality, no tour was conducted. The tickets were issued for passengers traveling from one point to another, and the appellant did not actually conduct any tours despite holding a tourist permit for a vehicle. The appellant contended that since tourist permit holder vehicles were also allowed for public transport, they should be entitled to the benefits of the notification and statutory provisions.

The appellant further claimed that the notification, effective from 7.7.2009, was amended by section 75 of the Finance Act, 1994, deeming the benefit of the notification to have been in force from 1.4.2000. The appellant highlighted sub-sections (2) and (3) of the said section, stating that service tax should not have been collected and any tax collected erroneously should be refunded within six months from the assent of the Finance Bill, 2011 by the President of India. Based on these arguments, the appellant asserted that their refund claim before the adjudicating authority was valid.

On the other hand, the Revenue contended that the appellant, as a holder of a tourist permit for the vehicle, indeed conducted tours as evidenced by the tickets indicating "conducted tours." The Revenue argued that this fact established the truth of the tour operations using the tourist vehicle, thereby justifying the denial of the exemption claimed by the appellant under the notification and statutory provisions.

After hearing both parties and examining the records, the Tribunal found that there was no concrete evidence, aside from interpreting the Motor Vehicles Act, to prove that the appellant, with a tourist vehicle permit, had actually conducted tours as implied by the ticket description. The Tribunal clarified that while conducted tours would not qualify for exemption under the notification, point-to-point operations of the vehicle, even by a tourist vehicle, were entitled to the exemption as outlined in the notification.

Consequently, in the absence of evidence contradicting the appellant's claim regarding the conduct of tours, the appeal was successful. However, the Tribunal emphasized that the refund, as per sub-section (3) of section 75 of the Finance Act, 2011, must adhere to the principle of unjust enrichment. Therefore, the matter was remanded to the adjudicating authority to determine whether the appellant had satisfied the unjust enrichment criteria for the eligible refund. If so, the authority was directed to grant the refund; otherwise, an appropriate order should be issued.

In conclusion, the appeal was remanded solely for the purpose of assessing unjust enrichment, based on the provisions of the Finance Act, 2011.