2009 (1) TMI 66

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..... nnot be any question of unjust enrichment - principle of unjust enrichment not applicable – refund entitled with interest
Shri P. Karthikeyan, Member (Technical) Shri T. Ramesh, Advocate for the Appellants Shri M.K.A.K. Mohiddin, JDR for the Respondent [Order per : P. Karthikeyan, Member (Technical)] - The appellants M/s. Professional International Courier Pvt. Ltd. Chennai [PIC, for short] rendered service classifiable under "courier service" during the period May 2003 to September 2003. They paid an amount of Rs.1,67,947/- as service tax during the material period. Subsequently the appellants learnt that they were not required to discharge service tax being co-loaders of M/s. The Professional Couriers, Chennai [TPC, for sh .....

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..... of excess service tax paid. He cites a decision of the Tribunal in Shiva Analyticals (I) Ltd. Vs. Commissioner of Service Tax, Bangalore - 2007 (7) STR 35 (Tri. -Bang.). The said decision allowed the claim of the appellants therein for excess service tax paid on the ground that when the tax collected was returned to the recipient of the service provider refund of the service tax to the service provider did not involve unjust enrichment. I have also heard the learned JDR who defends the impugned order. 3. I have considered the submissions made by both sides. The appellants had paid service tax to the tune of Rs.1,67,947/- which was not due to be paid by them. On learning the legal position as to their liability they returned the tax collect .....

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..... x incidence. Issue of credit note to the clients is also a form of payment, as held by the Apex Court in the case of Mohd. Ekram Khan and Sons cited supra. In view of the above, the order of the Asstt. Commissioner in sanctioning the refund is legal and proper. In other words, when the service provider has returned the service tax collected either by way of cheques or credit note, there cannot be any question of unjust enrichment. Therefore, the appeal is allowed." 4. Following the ratio of the above decision the appeal is allowed. The appellant shall be entitled to refund of an amount of Rs.1,67,947/- along with admissible interest in accordance with law. (Dictated and pronounced in open court)
Case laws, Decisions, Judgements, .....

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