2016 (4) TMI 940 - HC - Service Tax

Refund of Service tax paid in excess - Banking and Financial Services - Unjust enrichment - production of certificate of Chartered Accountant showing that excess amount collected had been refunded on 31.03.2004 and 27.10.2004 respectively - Held that - the evidence produced by the appellant before the appellate authority should be considered by the original authority. Annexure D,E and F orders are set aside and the matter is remanded to the original authority to consider in the light of the materials produced by the appellant before the appellate authorities whether it would be entitled to refund of the service tax paid in excess. - Matter remanded back

Summary

Issues:
1. Refund of excess service tax paid by the appellant.
2. Consideration of evidence by the original authority.
3. Remand of the matter to the original authority for further review.

Analysis:

Issue 1: Refund of excess service tax paid by the appellant
The appellant, a service provider in the category of "Banking and Financial Services," received an amount as management fee in advance during the year 2003-2004. Initially, service tax at 5% was paid on the full amount. However, due to a subsequent agreement with the recipient, the management fee was reduced, and the appellant sought a refund of the excess service tax paid. The original authority denied the refund citing unjust enrichment, as the appellant failed to prove that the tax burden was not passed on to the recipient. The appellant contended that evidence was submitted to show that the excess amount had been refunded to the service receiver. The appellate authorities rejected the appeal based on the delay in refunding the service tax collected. The appellant also provided a Chartered Accountant's certificate to support their claim. The High Court, after considering the contentions and evidence, set aside the previous orders and remanded the matter to the original authority to reevaluate whether the appellant is entitled to a refund of the excess service tax paid.

Issue 2: Consideration of evidence by the original authority
The appellant argued that the evidence, including the Chartered Accountant's certificate showing the refund dates, was not adequately considered by the authorities. They contended that the certificate should have been accepted to prove that the excess service tax amount was refunded to the service recipient. The High Court agreed that the evidence produced by the appellant before the appellate authority should be reviewed by the original authority. The Court emphasized the importance of considering all materials provided by the appellant in determining the entitlement to a refund of the service tax paid in excess.

Issue 3: Remand of the matter to the original authority for further review
In light of the arguments presented and the evidence submitted by the appellant, the High Court decided to set aside the previous orders and remand the matter to the original authority for a fresh review. The Court directed the original authority to reconsider the case based on the materials produced by the appellant before the appellate authorities. A timeline of two months was given for the original authority to make a final decision on the refund of the excess service tax paid by the appellant. The Customs Appeal was ordered accordingly, indicating a need for a thorough review of the refund claim.