2025 (5) TMI 1760

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....arned Customs, Excise & Service Tax Appellate Tribunal (Tribunal), Eastern Zonal Bench, Kolkata in Service Tax Appeal No. 75798 of 2024 dated 04.09.2024 and the rectification order in Service Tax (ROM) Application No.75650 of 2024 dated 11.02.2025. 2. The assessee has raised the following substantial questions of law for consideration: I) Whether the Learned Tribunal erred in law as well as in fact in not appreciating that in cases where refund of tax is sought for tax paid under Reverse Charge Mechanism the question of unjust enrichment does not arise ? II) Whether the Learned Tribunal erred in law as well as facts by expanding the scope of dispute before itself in respect of issues, which were never raised in the underlying show cau....

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....y concurred with the view taken by the Adjudicating authority and rejected the appeal. The correctness of these orders was questioned before the learned Tribunal. 6. The assessee relied upon Circular No.341/34/2010-TRU dated 31st March, 2011 where the applicable point of taxation has been illustrated by way of an example in respect of cases where part payments were made for receipt of services. The assessee also contended that the Circular dated 28th September, 2017 was issued to clarify the position as to the details of credit arising out of service tax paid under reverse charge mechanism after 30th June, 2017 would be reflected in the service tax return in the transitional forms under GST. Further, the assessee contended that the service....

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....In the order passed by the learned Tribunal dated 4.9.2024, the relevant paragraph of the above two judgments were extracted and agreed with the contentions raised by the appellant that the decision in OSI Systems Pvt. Ltd. would be applicable to the assessee's case. But however, in the penultimate paragraph of the order dated 4.9.2024, the learned Tribunal while setting aside the order and allowing the appeal, remanded the matter to the Adjudicating authority for the purpose of considering whether there is a bar of unjust enrichment. To be noted that this plea of unjust enrichment was never the case of the department as could be seen from the show cause notice as well as the order of admission and the order passed by the Appellate Authorit....

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....ayer was made by the assessee to grant refund without subjecting the assessee for further verification by the adjudicating authority. This prayer was rejected by the learned Tribunal in paragraph 4 of the order dated 11.2.2025. Therefore, the assessee is on appeal. 7. The learned Tribunal having accepted the fact that there is an error apparent on the face of the order inasmuch as the word "no" was missed out while extracting the relevant portion of the decision in the case of OSI Systems Pvt. Ltd., the Tribunal ought to have noted that the consequence thereof would be to allow the appeal of the assessee and direct the Adjudicating authority to grant refund within a time-frame. In fact, the factual position in OSI Systems Pvt. Ltd., is ide....