Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2021 (12) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (12) TMI 183 - CESTAT KOLKATARefund of Service Tax - service tax was paid under the mistake of law - Business Auxiliary Services - reverse charge mechanism - principles of unjust enrichment - period April 2007 to June 2012 - HELD THAT:- The M/S INTEROCEAN SHIPPING COMPANY VERSUS COMMISSIONER OF SERVICE TAX, DELHI [2012 (12) TMI 477 - CESTAT NEW DELHI] does not exclude the taxability of ship broking services under any other taxable category. However, the period involved in the proceedings before us is prior to 1 July 2012 when only specified services were taxable, and the onus was entirely upon the Revenue to prove classification and taxability of ship broking services under any other taxable category. No negative inference could be drawn merely from the fact that ship broker services does not appear in Section 66D of the negative list introduced with effect from 1 July 2012 whereby all services were made taxable, unless exempted. Instead of discharging the burden of correctly classifying and establishing taxability of ship broking services under a particular taxable category by putting the Appellant to notice, the Revenue has on the contrary sought to shift this burden upon the Appellant as the Notice dated 30 October 2014 did not even propose classification of ship broking services under any other taxable category. Unjust enrichment - HELD THAT:- The Appellant had adduced a Certificate from a Chartered Accountant certifying the non-availment of credit of the service tax alleged to have been paid mistakenly under the category “Business Auxiliary Services” as also regarding the incidence of tax having not been passed on to any other person. There is merit in the contention of the Appellant that the Certificate of an expert cannot be discarded unless a contrary opinion has been expressed by another expert - the findings of the appellate authority as regards the CA Certificate dated 25 March 2015 being not a conclusive proof of the incidence of tax not having been passed on by the Appellant to any other person also cannot be accepted. Appeal allowed - decided in favor of appellant.
|