9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (7) TMI 1351 - AT - Service TaxRefund claim - unjust enrichment - Rule 5 of the CENVAT Credit Rules, 2004 read with Notification No.5/2006-CE dt. 14/03/2006 - Scope of SCN - HELD THAT - This Tribunal in the case of M/S. XL HEALTH CORPORATION INDIA PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX 2017 (5) TMI 186 - CESTAT BANGALORE has held the Unjust enrichment principle is not applicable and has been specifically excluded by the proviso to Section 11B providing claim of refund. Further, bar of unjust enrichment is not applicable in the case of export of services - reliance can be placed in the case of CONVERGYS INDIA SERVICES (P.) LTD. VERSUS COMMISSIONER OF SERVICE TAX, NEW DELHI 2011 (9) TMI 473 - CESTAT, NEW DELHI where it was held that the unjust enrichment is not applicable to cases involving export of services as per the proviso to Section 11B(2). Scope of SCN - HELD THAT - Commissioner(Appeals) has also travelled beyond the show-cause notice because in the show-cause notice, the principle of unjust enrichment was not invoked. Appeal allowed - decided in favor of appellant.
Issues:
Challenge to finding of unjust enrichment in refund claims by Commissioner(Appeals) Analysis: The case involved 14 appeals filed against two impugned orders passed by the Commissioner(Appeals) remanding the matter to the original authority for fresh consideration, specifically on the applicability of the principles of unjust enrichment. The appeals were solely against this finding. The appellant, a subsidiary of a US-based company, provided services to its group companies outside India and claimed refund under CENVAT Credit Rules, 2004. The original authority rejected the refund claim, leading to the appeals. The appellant argued that the burden of taxes was on the customer as per the contract and that the principle of unjust enrichment did not apply to export of services. The Tribunal cited precedents and held that unjust enrichment is not applicable in export of services, setting aside the impugned orders and remanding the case for fresh consideration. The Tribunal emphasized that the principle of unjust enrichment was wrongly invoked and was specifically excluded by the proviso to Section 11B providing claim of refund. The appellant's counsel contended that the impugned orders were contrary to the law and binding judicial precedent, particularly challenging the finding of unjust enrichment. The counsel highlighted a clause in the contract shifting the tax burden to the customer and argued that indirect tax is borne by the ultimate consumer, who in this case were the group companies outside India. The counsel referenced Tribunal decisions to support the argument that unjust enrichment does not apply to export of services. On the other hand, the AR defended the impugned order. After considering the submissions, the Tribunal found that the impugned order wrongly invoked the doctrine of unjust enrichment. Citing various decisions, the Tribunal held that unjust enrichment is not applicable in export of services and that the impugned order exceeded the show cause notice scope. Therefore, the Tribunal set aside the impugned order and allowed all 14 appeals, remanding the case back to the original authority for fresh consideration within three months. In conclusion, the Tribunal's detailed analysis focused on the inapplicability of the principle of unjust enrichment in cases involving the export of services, citing relevant legal provisions and precedents. The judgment emphasized that the burden of taxes borne by the ultimate consumer and the specific exclusion of unjust enrichment in refund claims under Section 11B. The decision to set aside the impugned orders and remand the case for fresh consideration highlighted the importance of adhering to legal principles and precedents in tax refund matters.
|
