2008 (2) TMI 82 - AT - Service Tax

Assessee utilized the GTO services & paid Tax for the period 16/11/97 to 01/06/98 as service receiver after the retrospective amendment were made refund claimed of this tax because while paying tax, he didn t realize that they were eligible for benefit of the Not.43/97, as a SSI unit on basis of C.A. s certificate Comm.(A) in remand concluded that incidence of duty has not been passed, hence unjust enrichment is not applicable no infirmity in impugned order of Comm..(A) refund allowed

Summary

Issues:
Refund claim hit by unjust enrichment clause, Chartered Accountant certificate evidentiary value, Contradiction in cases, Reference to Larger Bench.

Analysis:
Issue 1: Refund claim and unjust enrichment clause
The appeal involved a refund claim by the respondents for service tax paid as a service receiver. The revenue contended that the refund claim was hit by the unjust enrichment clause as the amount had been shown as expenditure in the profit and loss account. The Senior Departmental Representative (SDR) argued that the Chartered Accountant certificate provided by the respondents did not hold evidentiary value, citing precedents such as Weikfield Products Co. Ltd. The SDR emphasized that the duty burden had been passed on to customers, leading to indirect cost transfer. The Commissioner (Appeals) had previously allowed the refund in cash, which was challenged by the revenue in the Tribunal.

Issue 2: Contradiction in cases
The SDR highlighted the contradiction in various cases on the issue at hand and proposed a reference to a Larger Bench. However, the Counsel for the respondents argued that the matter was covered by judgments like CCE, Pune Vs. BG Chitale and CCE Pune Vs. Cummins India Ltd., emphasizing the similarity in issues. The Counsel pointed out that the Chartered Accountant certificates were not contested by the revenue in any stage of the proceedings.

Issue 3: Chartered Accountant certificate and evidentiary value
The Commissioner (Appeals) considered a second Chartered Accountant certificate in the remand proceedings, which certified that the respondents had not passed on the burden of service tax to customers. The Commissioner (Appeals) relied on this certificate to support the admissibility of the refund claim. The Tribunal noted the importance of the Chartered Accountant's certification in determining whether the incidence of duty had been passed on.

Conclusion:
After considering the submissions and perusing the records, the Tribunal found that the respondents had paid service tax post-retrospective amendment and were eligible for exemption as per a specific notification. The Commissioner (Appeals) correctly allowed the refund claim based on the Chartered Accountant certificate and previous judgments. The Tribunal rejected the revenue's appeal, stating that the issue was covered in favor of the respondents and did not warrant a reference to a Larger Bench. The order of the Commissioner (Appeals) was upheld, and the appeal by the revenue was dismissed.