PER : D.M. MISRA
This is an appeal filed against Order-in-Appeal No.TVM- EXCUS-000-APP-352-2020 dated 08.10.2020 passed by the Commissioner of Central Tax, Central Excise and Customs (Appeals), Cochin.
2. Heard both sides and perused the records.
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3. The short issue involved in the present appeal is whether the appellant are entitled to refund of service tax paid during the period 01.04.2017 to 30.06.2017. It is the contention of the learned advocate for the appellant that, under service agreement with M/s. Samsung India Electronics Private Limited dated 10.12.2016, they have rendered transportation service to M/s. Samsung India Electronics Private Limited during the period in question. Also, along with transportation services, they undertook loading and unloading of the goods for which they raised invoices separately. The appellant discharged service tax on the said loading and unloading charges and M/s. Samsung India Electronics Private Limited rejected their request for payment of loading and unloading charges being not part of the service agreement. The appellant filed present claim of refund of service tax paid against those invoices remained unpaid on 18.09.2018. The Adjudicating Authority, though did not dispute about correctness of the refund claim and filed in accordance with the procedure laid down in the Finance Act, 1994, but wrongly rejected the same on the ground that they have rendered loading and unloading services at various sites, even though consideration has not been received from the customer M/s. Samsung India Electronics Private Limited. In support, he has referred to the judgment of this Tribunal in the case of Hewlett Packard India Sales Pvt. Ltd. V/s C.CE. & ST (LTU), Bangalore [2024 (388) ELT 374 (Tri. -Bang.)].
4. With regard to the issue of unjust enrichment, the Learned Advocate fairly submits that the Chartered Accountant certificate could not be placed before the original authority, which was produced only during the course of Appellate proceeding.
5. Learned AR for the Revenue reiterates the findings of the learned Commissioner (Appeals).
6. It is not in dispute that, the appellant though rendered the services of loading and unloading along with transportation services, the invoices had been raised by them separately on
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account of loading and unloading services, was not accepted by the M/s. Samsung India Electronics Private Limited and accordingly, rejected being not part of the Service Agreement. Thus, the value of the said services were not received by the appellant, consequently, the levy of service tax under Section 66B on loading and unloading charges accepting it as a service under Section 65(B)(44) of the Finance Act, 1994, is not sustainable.
7. I find that this Tribunal in Hewlett Packard India Sales Pvt. Ltd.'s case (Supra) held a similar view observing that the consideration since not been received during the warranty period against the service provided, hence service tax cannot be levied on such services under Section 66B of the Finance Act, 1994. Thus, the appellant are eligible for the refund of the said amount. However, the issue of unjust enrichment needs to be verified taking into consideration the Chartered Accountant certificate, which was not produced before the original authority. Consequently, the appeal needs to be remanded to the Adjudicating Authority to ascertain the exact amount of refund admissible to the appellant and also to decide applicability of principles of unjust enrichment.
8. In the result, the impugned order is set aside and appeal is remanded to the adjudicating authority for the limited purpose of verification of quantum of refund and to decide applicability of principles of unjust enrichment. Needless to mention that the appellant be allowed to produce evidence in support of their case and an opportunity of hearing be given to the appellant. The Appeal is allowed by way of remand to the adjudicating authority.
(Order dictated and pronounced in Open Court.)
(D.M. MISRA)
MEMBER (JUDICIAL)
RAJA/GM/GB