2023 (3) TMI 890 - AT - Service Tax

Refund claim - hit by mischief of unjust-enrichment as per Section 11 B (1) of Central Excise Act, 1944 or not - appellant have initially charged service tax to the customer, the same was further passed on by the said customers to any other person or not - HELD THAT - There is no dispute that the appellant have initially charged service tax to the customer. Subsequently, the same was reversed by issuing the credit note to the customers, therefore, the incidence of the service tax paid by the appellant was not passed on this issue has been considered in the various judgments - Reliance can be placed in the case of Addison Co. Ltd. 2016 (8) TMI 1071 - SUPREME COURT , where it was held that Except for a factual dispute about the genuineness of the certificate issued by the Chartered Accountant and the credit notes raised by the Assessee regarding the return of the excess duty paid by the Assessee, there is no dispute in this case of the duty being passed on to any other person by the buyer. As it is clear that the Assessee has borne the burden of duty, it cannot be said that it is not entitled for the refund of the excess duty paid. In the case of L T 2020 (4) TMI 384 - CESTAT AHMEDABAD also the identical issue has been considered wherein it was held that even though initially the amount of service tax was recovered but subsequently it was returned. The incidence primafacie was not passed on. However, this being the factual aspect, needs to be verified by the Adjudicating Authority. From the above judgments it can be seen that the facts and transaction involved in the present case are identical to the judgments, wherein it was held that unjust-enrichment does not exist in the case where the assessee initially charged duty / service tax and subsequently issued the credit note for the same. Following the above decisions and considering the facts of the present case, the appellant s refund claim does not fall under the clutch of unjust-enrichment. The appellant is entitled for the refund claim - Appeal allowed.

Summary

Issues Involved:
The issue involved is whether the refund of the appellant is affected by unjust-enrichment under Section 11 B (1) of the Central Excise Act, 1944.

Judgment Details:
The appellant argued that despite initially charging service tax to customers and later issuing credit notes for the same, there was no unjust-enrichment as the tax incidence was not passed on. Citing relevant judgments including CCE Vs. Addison & Co. Ltd, the appellant contended that the refund claim should not be denied. On the other hand, the Revenue supported the findings of the impugned order.

Upon careful consideration, the tribunal focused on determining whether unjust-enrichment existed despite the issuance of credit notes by the appellant to customers for the service tax initially charged. The tribunal referred to the case of Addison & Co. Ltd. and other similar cases to analyze the concept of unjust-enrichment in such situations. The tribunal observed that in cases where the tax amount was initially charged but later refunded, and the burden was not passed on, the refund claim was not hit by unjust-enrichment.

In line with the precedents and the specific circumstances of the case, the tribunal concluded that the appellant's refund claim was not tainted by unjust-enrichment. Therefore, the impugned order was set aside, and the appeal was allowed in favor of the appellant.

Separate Judgment by Judge:
The judgment was delivered by Mr. Ramesh Nair, Member (Judicial) at the Appellate Tribunal CESTAT AHMEDABAD.