2021 (7) TMI 297 - AT - Service Tax

Refund of Service Tax paid - principles of unjust enrichment - Service tax was paid under wrong head - rejection of claim solely on the ground that certificate of the Chartered Accountant alone is not sufficient to establish that portion of taxes have not been passed on to the buyer - period from 01.04.2008 to 31.03.2009 - HELD THAT - In the present case, the stand of the appellant from the very beginning was that they are not liable to pay service tax but a SCN was issued to the sister concern demanding the service tax and thereafter the appellant paid the service tax but later on found that they were not liable to pay the service tax and filed the refund claim - it has been consistently held by various Courts that free services rendered by authorized service stations on behalf of the manufacturer are not covered under the definition of taxable service. The only ground on which the impugned order has rejected the refund claim is that Chartered Accountant certificate alone is not sufficient whereas in the present case the appellant filed the Chartered Accountant certificate and also filed the audited statements of accounts where the service tax paid was written off and the appellant has also produced a certificate from manufacturer which has also certified that the appellant had not made any claim of service tax on free service charges - besides the Chartered Accountant certificate, the appellant has also produced audited statements of accounts as well as the certificate from the manufacturer which should be sufficient to hold that the appellant has not passed the incidence of tax to any other person and hence entitled to claim refund. Tribunal in the case of CC, Guntur Vs MP Sugar and Chemicals 2006 (12) TMI 349 - CESTAT, BANGALORE held that certificate issued by the Chartered Accountant has an evidentiary value and should not be rejected lightly because the said certificate has been issued after the verification of the accounts of the assessee. The impugned order denying the refund is not sustainable in law - Appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund claim rejection based on unjust enrichment and insufficient evidence.

Analysis:
The appellant, an authorized dealer of commercial vehicles, filed a refund claim for wrongly paid service tax under Business Auxiliary Service. The claim was rejected by the Deputy Commissioner, and subsequent appeals were dismissed. The main contention was the appellant's failure to prove that the tax incidence was not passed on to a third party. The Commissioner (Appeals) rejected the claim solely because the Chartered Accountant certificate was deemed insufficient to establish non-passing of tax burden. The appellant argued that they believed they were not liable for the tax, did not issue invoices, and thus did not pass on the tax. They provided various evidence, including audited accounts, a manufacturer's certificate, and legal precedents supporting their case.

The Tribunal found that the original authority went beyond its remit in rejecting the refund claim on merits. It noted that the appellant's consistent stance was non-liability for the tax, supported by legal precedents stating that free services by authorized stations are not taxable. The Tribunal emphasized the evidentiary value of the Chartered Accountant certificate, citing previous cases where such certificates were accepted for refunds. The appellant's additional evidence, including audited accounts and manufacturer's certificate, further supported their claim of non-passing of tax burden. Consequently, the Tribunal held that the rejection of the refund claim based solely on the insufficiency of the Chartered Accountant certificate was unjustified.

In conclusion, the Tribunal set aside the impugned order, allowing the appeal and directing the original authority to grant the refund promptly. The decision highlighted the importance of considering all evidence provided by the appellant, including the Chartered Accountant certificate, audited accounts, and manufacturer's certificate, in determining the non-passing of tax burden and eligibility for a refund.