24 June 2024


Customs, Excise and Service Tax Appellate Tribunal

Dynamic Elecpower Pvt Ltd vs. Commissioner of Central Goods and Service Tax




Assessee is deemed to have passed on the full incidence of service tax refund to the service receiver unless the contrary is proved

The Appellant has assailed the order-in-appeal, whereby the rejection of the refund claim on the ground of unjust enrichment in terms of Section 11 B of the Central Excise Act, 1944 was upheld. The Appellant were engaged in providing services under the category of 'Erection, Commissioning or Installation Services', 'Business Auxiliary Services' and 'Management, Maintenance & Repair Services' to PHED and others during the period 2004-2005 to 2008-2009. The issue that arises is whether the refund claim of the Appellant has been rightly credited to the Consumer Welfare Fund on the ground of unjust enrichment.

Section 12B of the Act, 1944, provides that unless the contrary is proved by the assessee, it shall be deemed that the assessee has passed on the full incidence of service tax refund to the service receiver. In terms of the provisions, the applicant was required to submit the necessary documents and evidences in support of his claim that the principle of unjust enrichment would not apply as he has not passed on the incidence of duty to the service receiver. Both, the Adjudicating Authority and the Appellate Authority had specifically noted that, either the Appellant had not produced the documents or had only submitted the photocopies of the Ledger Account and invoices.

The refund claim filed by the Appellant includes the amount of Rs.7,24,463 excess paid under the category of 'Management, Maintenance & Repair Services'. As the refund claim is found to be hit by unjust enrichment clause for want of requisite documents, an opportunity may be granted to the Appellant to produce the documents and other evidences proving that the incidence of duty has not been passed on either directly or indirectly to the service receiver. The matter is remanded to the Adjudicating Authority, granting liberty to the Appellant to substantiate that the claim is not hit by unjust enrichment in the light of the documents produced. The appeal, is allowed by way of remand.

Tags : Refund Rejection Legality

Share :