2023 (3) TMI 737 - AT - Service Tax

Refund of service tax - rejection on the ground of unjust enrichment - reverse charge mechanism - remanding the matter to the Adjudicating Authority for verification of the challans submitted by the respondent - HELD THAT:- It is not disputed that service tax was paid by the respondent on a reverse charge mechanism. In such a situation, it is difficult to comprehend as to how the burden of service tax could have been passed on to any other person.

What is also important to note in the present case is that the Chartered Accountant had given a certificate dated 24.07.2015 after examining the books of accounts of the respondent and the relevant records maintained for service tax purpose, including the challans, GST returns maintained during the period from October 01, 2005 to February, 2011 - No good reason has been given by the Adjudicating Authority to reject the certificate of the Chartered Accountant. The Commissioner (Appeals) has relied upon the Certificate, as no evidence had been led by the department to substantiate that it was not correct.

Thus, there is no error in the finding recorded by the Commissioner (Appeals) that the principal of unjust enrichment would not be applicable in the present case.

Whether the Commissioner (Appeals) was justified in remanding the matter to the Adjudicating Authority for verification of the challans submitted by the respondent? - HELD THAT:- It is not disputed that the respondent had submitted the challans but as they had not been examined by the Adjudicating Authority for the reason that the refund application itself had been rejected, it would be appropriate that the Adjudicating Authority, in the first instance, examines the challans. The Commissioner (Appeals) was, therefore, justified in remanding the matter to the Adjudicating Authority for this specific purpose - As the matter is old and any delay may further burden the department with interest, the Adjudicating Authority shall make all endeavors to verify the challans at an early date, and preferably within a period of two months from the date a copy of the order passed today is produced before the Adjudicating Authority by either of the parties.

The appeal filed by the department is dismissed.