2009 (11) TMI 456 - AT - Service Tax

Tribunal allows refund claim for excess Service tax but rejects on unjust enrichment.

The Tribunal rejected the Revenue's appeal and allowed Poornima Advertisements & Promotion Pvt. Ltd.'s appeal regarding a refund claim for excess ... Refund- Unjust enrichment – Business Auxiliary Services - Poornima simply books the space in the news paper or books the time in the media and thereafter collects the amount paid to the media or newspaper. The master circular issued by the board has clarified that merely canvassing advertisement for public on commission basis is not classifiable under the taxable service as advertising agency service. Held that – C.B.C.&E. circular covers case of appellant. held that – issue of credit note sufficient for deciding liability or claim of refund. No findings of authorities that respondent not refunded amount. Unjust enrichment not applicable. Issues:1. Eligibility for refund claim based on excess Service tax payment.2. Classification of services provided by the appellant.3. Limitation under Section 11B of Central Excise Act, 1944.4. Unjust enrichment in refund claim.5. Service tax liability calculation based on actual amount collected.Analysis:1. The case involved a refund claim by M/s. Poornima Advertisements & Promotion Pvt. Ltd. for excess Service tax paid due to not considering a 12% discount offered to clients. The Commissioner (Appeals) upheld the refund claim on merits but rejected it on the grounds of unjust enrichment. The Revenue appealed against the decision.2. The Tribunal analyzed the nature of services provided by Poornima and concluded that their activities were limited to booking space or time for advertisements, falling under business auxiliary services rather than advertising agency services. The Revenue's argument that the scope extended to display or exhibition of advertisements was dismissed based on the master circular issued by the Board.3. The Tribunal addressed the issue of limitation under Section 11B of the Central Excise Act, 1944, concerning a portion of the refund claim paid before 25-1-2004. The appellant accepted that this portion was time-barred and did not press the issue.4. Regarding unjust enrichment, the Tribunal referred to precedents and Board clarifications, emphasizing the issuance of credit notes by Poornima as sufficient evidence for claiming a refund. It was noted that unless there was clear evidence that the excess amount was not refunded to clients, the unjust enrichment clause could not be invoked.5. The Tribunal clarified the calculation of Service tax liability, stating that it should be based on the actual amount collected by the service provider, not the full discount received from advertising agencies or media. Precedent cases were cited to support this interpretation.In conclusion, the Revenue's appeal was rejected, and Poornima's appeal was allowed. The Tribunal highlighted that the rejection of the Revenue's appeal did not validate the time-barred refund claim accepted by the appellant.