2018 (5) TMI 1361 - AT - Service Tax

Refund claim - refund filed on the premise that on their activity of construction, they are not liable to pay service, therefore, amount paid by them is to be refunded - time limitation - unjust enrichment - Held that - it cannot be held that the appellant has filed refund claim with a delay. As in a case where is a dispute whether there is a liability of the assessee or not and the same has been settled by the higher forum, in that circumstances, the assessee s entitled to file refund claim within one year from the date when the dispute has been settled by the higher forum - the refund claims filed by the appellant are within time. Unjust enrichment - Held that - as there is no finding given by the authorities below, in that circumstances, the matter is remanded back to the adjudicating authority to decide the issue of unjust enrichment within 30 days of passing of this order and the appellant is also directed to produce the required documents in relation to their claim of refund within 15 days from today. Appeal allowed by way of remand.

Summary

Issues:
1. Rejection of refund claim as time-barred.
2. Applicability of service tax on services provided to Haryana State Housing Board.
3. Entitlement to refund claim based on court decision.
4. Lack of documents with refund claim.
5. Filing of refund claim beyond one year from payment.

Analysis:
1. The appellant appealed against the rejection of the refund claim as time-barred. The appellant provided construction services to Haryana State Housing Board without paying service tax initially. The refund claim was rejected on the grounds of being time-barred and the issue of unjust enrichment.

2. The Commissioner (A) rejected the refund claim, citing a High Court ruling that the State Housing Board is a governmental authority not liable for service tax. The appellant argued they were part of the same case and entitled to the refund based on the court decision.

3. The appellant contended that they were part of the case that decided the liability for service tax, making them eligible for a refund. The Assistant Commissioner did not find any documents supporting the refund claim and argued it was filed beyond the one-year limit from the payment date.

4. The Tribunal considered whether the appellant was liable to pay service tax, noting the High Court's decision in the appellant's case on 11.08.2016. The refund claims were filed on 11.05.2016 before the court's decision, allowing the claims within the time limit after the dispute was resolved.

5. Regarding unjust enrichment, as no findings were provided by the lower authorities, the matter was remanded for further consideration. The appellant was directed to produce necessary documents within 15 days. The Tribunal disposed of the appeal accordingly, ensuring the issue of unjust enrichment was addressed by the adjudicating authority within 30 days.