2015 (11) TMI 343 - AT - Service Tax

Denial of refund claim - Construction Services - Unjust enrichment - Held that - there is no basis to remand the case back either to the original adjudicating authority or to the Commissioner (Appeals) when the Hon ble High Court of Madras 2015 (3) TMI 735 - MADRAS HIGH COURT has clearly held that the deposits made during investigation or adjudication proceedings of the department are in the nature of deposits made under protest and the principle of unjust enrichment is not applicable to the same. - appellant is entitled to the sanction of the refund - Decided in favour of assessee.

Summary

Issues:
1. Refund sanction for 'Construction Services' under service tax.
2. Doctrine of unjust enrichment application in refund claim.
3. Application of principles regarding deposits made under protest during investigations or adjudication proceedings.

Analysis:
1. The appellant sought refund sanction for 'Construction Services' post a Tribunal decision establishing service tax liability since 01.07.2010. Initially, a refund of Rs. 20,41,771/- was approved but not paid due to 'unjust enrichment,' with the amount diverted to the Consumer Welfare Fund as per Section 11B(2) of the Central Excise Act 1944.

2. The Commissioner (Appeals) rejected the refund claim citing unjust enrichment. The appellant, referencing a Review Adjudication Order, highlighted their non-liability for service tax post-deposit during a DGCEI investigation. They acknowledged collecting Rs. 3,28,738/- as service tax from customers, not claimed for refund.

3. The appellant's advocate relied on a Madras High Court decision emphasizing deposits made under protest during investigations, exempt from unjust enrichment. The advocate cited various court judgments supporting this stance. The respondent's representative suggested remanding the case for unjust enrichment assessment, countered by the Madras High Court's directive. Consequently, the Tribunal ruled in favor of the appellant, sanctioning a refund of Rs. 17,13,033/- to be paid within six weeks of filing with the competent authority.