2017 (12) TMI 959 - AT - Service Tax

Refund claim - unjust enrichment - Held that - the impugned order has been passed on the basis of assumption and presumption; however, appellant is ready to produce the Chartered Accountant certificate to the effect that incidence of duty has not been passed on to the service provider or to anyone else and he has borne the element of service tax himself - these cases needs to be remanded back to the original authority with a direction that the appellant will produce the Chartered Accountant Certificate to rule out the unjust enrichment - appeal allowed by way of remand.

Summary

Issues:
Appeal against modified Order-in-Original dated 5.3.2015 by Commissioner (A) - Applicability of unjust enrichment doctrine in service tax refund claim - Requirement of Chartered Accountant certificate to rule out unjust enrichment.

Analysis:
The appellant, a hotel proprietor, filed four appeals against modified orders dated 5.3.2015 by the Commissioner (A) regarding service tax refund claims. The appellant, N. Raghavendra Rao, operated a hotel on NWKRTC premises and contested the imposition of service tax under renting of immovable property. The NWKRTC collected service tax over rent between October 2011 and June 2012. The Assistant Commissioner rejected the refund claim citing unjust enrichment. The Commissioner (A) overturned this decision, ruling the appellant was not liable for service tax and the collected amount was refundable. However, the refund was ordered to be transferred to the Consumer Welfare Fund instead of cash refund.

During the hearing, the appellant's counsel argued against the unjust enrichment doctrine's application, claiming the appellant was a consumer and entitled to a refund as the tax was paid erroneously. The counsel contended that the appellant had not passed on the tax burden and was willing to provide a Chartered Accountant certificate to prove this. The Tribunal agreed with the appellant's arguments, finding that the case required a remand to the original authority for the appellant to produce the Chartered Accountant Certificate. If the certificate confirms that the duty was borne by the appellant, the lower authority should consider granting the refund. Therefore, all four appeals were remanded back to the original authority for further proceedings.

The Tribunal's decision focused on the necessity of establishing that the appellant had not passed on the tax burden to be eligible for a refund, emphasizing the importance of the Chartered Accountant certificate in ruling out unjust enrichment. The judgment highlighted the appellant's right to challenge the imposition of service tax and seek a refund if the tax burden was not transferred to the service provider or any other party. The Tribunal's ruling aimed to ensure a fair assessment of the refund claim by requiring concrete evidence, such as the Chartered Accountant certificate, to support the appellant's position and prevent unjust enrichment.