2022 (3) TMI 695 - AT - Service Tax

Refund of service tax - 100% export of granite/other stone slabs, for which services availed - rejection of refund on the ground of absence of export documents and as such non-compliance of the condition of notification merely for the reason that the substantive documents were submitted with certain delay - rejection also on the ground of unjust enrichment - HELD THAT - The refund of the tax paid under certain exemption notification in favour of the assessee is a substantial benefit being given by the Revenue to the assessee/exporter. The law in this respect has already been settled - This Tribunal, Hyderabad Bench, in the case of M/S COROMANDEL STAMPINGS STONES LTD. VERSUS THE COMMISSIONER. C.C. E S. T. HYDERABAD -II 2016 (7) TMI 780 - CESTAT HYDERABAD has held that once there is no dispute about the goods to have been exported and the service tax to have been paid by the exporter, the failure to notify the Assistant/Deputy Commissioner by filing form EXP 1 and non submission of return in form EXP 2 as are otherwise required under the exemption notification, cannot lead to denial of the substantial benefit of refund. The said lapse is merely a procedural one and the substantial benefit cannot be denied on technical grounds. The Principle Bench of the Tribunal also in the case of M/S HEG LIMITED VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX, BHOPAL 2019 (7) TMI 773 - CESTAT NEW DELHI has held that once the compliance of all the conditions of notification are undisputed, delay in the said compliance, being merely a procedural lapse cannot be made the basis to deny the substantial benefit as that of refund in terms of the exemption granted to the appellant vide an exemption notification. The delay has specifically been held to be insignificant to deny such a benefit. In view of the documents being duly filed by the appellant proving the export of the goods by availing services of Goods Transport Agency and the payment of service tax in respect thereof. Keeping in view the entitlement of the appellant for the exemption as per Notification No. 31/2012-S.T. dated 20th June 2012, it is held that delay in compliance of the conditions of said notification is wrongly held to be a reason to deny/reject the refund of the service tax paid - the rejection on this ground is hereby set aside. Unjust enrichment - HELD THAT - Hon ble Bombay High Court, in the case of THE COMMISSIONER OF CENTRAL EXCISE, PUNE 1 COMMISSIONERATE VERSUS M/S SANDVIK ASIA LTD. 2015 (10) TMI 719 - BOMBAY HIGH COURT , has clarified that presumption of passing on incidence of duty is absolutely immaterial and irrelevant. Hon ble Bombay High Court clarified that even if the amount has been shown as expenses in accounts, it does not mean that the burden has been passed on to the consumer - In the present case, there, in addition, is a deposition on behalf of the appellant that too in the form of affidavit that the burden shall not be remaining with consumers and the entries of profit and loss accounts shall be accordingly changed - the findings of Commissioner (Appeals) with respect to the element of unjust enrichment of the appellant are held merely presumptive in nature. The rejection on said account also is therefore held to be irrelevant. Both the grounds of rejection of refund claim by Commissioner (Appeals) are held irrelevant - Appeal allowed - decided in favor of appellant.

Summary

Issues:
Challenge to Order-in-Appeal dated 18.08.2020 regarding refund claim of service tax paid for the period from July 2012 to June 2017 in relation to export of granite/other stone slabs. Rejection of refund claim based on absence of export documents and unjust enrichment of the appellant.

Analysis:
The appellant, engaged in 100% export of goods, filed a refund claim for service tax paid for the mentioned period. The claim was rejected by the department citing wrong payment of service tax exempted under Notification No. 31/2012. The appellant submitted voluminous documents to prove export, including EXP-1 and EXP-2 forms. The rejection was based on lack of export documents and unjust enrichment. The appellant argued that all conditions were met and any delay in compliance was procedural, not substantial. The Tribunal referred to previous cases where delay in compliance did not warrant denial of refund under exemption notifications.

The Tribunal found that the appellant fulfilled the conditions of the exemption notification and the delay in compliance was not substantial enough to deny the refund claim. Citing case laws, it held that procedural lapses should not lead to denial of substantial benefits like refunds. Therefore, the rejection based on the absence of export documents was set aside.

Regarding the second ground of rejection, the Tribunal noted that the service tax was already paid by the appellant and shown as an expense in the profit and loss account. The appellant's partner affirmed that if refunded, it would be credited as income. The Tribunal disagreed with the presumption of unjust enrichment, citing a Bombay High Court case that clarified showing an amount as expenses does not necessarily mean passing on the burden to consumers. The Tribunal held the rejection on the grounds of unjust enrichment to be presumptive and irrelevant.

In conclusion, the Tribunal found both grounds of rejection by the Commissioner (Appeals) to be irrelevant and contrary to established decisions. The order under challenge was set aside, and the appeal was allowed, granting the appellant the refund claim for the service tax paid.

Judgment:
The Tribunal set aside the rejection of the refund claim based on procedural lapses and unjust enrichment, allowing the appeal in favor of the appellant.