2018 (5) TMI 1219 - AT - Service Tax

Appeal granted for service tax refund under reverse charge mechanism.

The Tribunal allowed the appeal, ordering the refund of the service tax amount paid by the appellants. It held that the amount paid under the reverse ... Refund claim - time limitation - unjust enrichment - Held that: - the duty incidence was not passed on to anybody else, but was passed to self is tenable in law therefore the order under challenge needs to be modified to that extent that the amount of refund allowed of ₹ 317031/- shall be refunded to the appellant. Time limitation - Held that: - the said amount did not constitute service tax and therefore was not liable to be subjected to the provisions of section 11B in so far as limitation is concerned and therefore the said amount needs to be refunded to the appellant. Appeal allowed - decided in favor of appellant. Issues:- Liability for service tax under GTA service- Refund of service tax paid- Rejection of refund as time-barred- Applicability of unjust enrichment doctrine- Interpretation of provisions related to limitation on refund of service taxLiability for service tax under GTA service:The appellants, manufacturers of PCC Poles, utilized the services of a goods transport operator for transportation and paid Service Tax along with interest. The Commissioner (Appeals) initially held that the appellants were not liable for service tax on GTA service. Subsequently, the appellants applied for a refund, which was partially granted by the original authority but transferred to the consumer welfare fund. The remaining refund claim was rejected as time-barred. The appeal against these findings was decided by the Tribunal.Refund of service tax paid:The counsel for the appellant argued that the service tax amount was paid under the reverse charge mechanism, meaning the burden was not passed on to anyone else but borne by the appellant. Therefore, the doctrine of unjust enrichment did not apply. Additionally, the counsel contended that the amount rejected as time-barred was not liable to be paid under the Finance Act, 1994, as per a previous ruling by the Commissioner (Appeals) and a judgment of the Karnataka High Court. The Tribunal agreed with this argument and ordered the refund of the amount.Rejection of refund as time-barred:The Tribunal held that the amount in question, paid under the reverse charge mechanism, was not subject to the provisions of section 11B concerning the limitation on the refund of service tax. Citing the Karnataka High Court ruling, the Tribunal concluded that the amount did not constitute service tax and should be refunded to the appellant.Applicability of unjust enrichment doctrine:The Tribunal found that since the duty incidence was not passed on to anyone else but borne by the appellant, the entire amount paid as reverse charge did not fall under the doctrine of unjust enrichment. Consequently, the Tribunal allowed the appeal and ordered the refund of the amount to the appellant.In conclusion, the Tribunal modified the order to allow the refund of the service tax amount paid by the appellants and rejected the notion that the amount was time-barred, citing relevant legal precedents and the application of the reverse charge mechanism.