COMMISSIONER OF CENTRAL EXCISE Vs. SHANKAR RAMCHANDRA AUCTIONEERS

JUDGEMENT

(1.) THIS appeal is filed by the Revenue against the impugned order whereby the Commissioner (Appeals) allowed the refund claim filed by the respondent.

(2.) THE brief facts of the case are that the respondent obtained the service Tax registration and paid the Service Tax under the category of 'Business Auxiliary Services' during April, 04 to March, 06. Later on realizing that the service of 'Auctioneers' provided by them was not taxable during the period when they paid tax under category of 'Business Auxiliary Services', they filed a refund claim on 29.3.2007. It was at the insistence of the department that they paid the tax under 'Business Auxiliary Services'. The service of Auctioneers became taxable only w.e.f. 1.5.2006. A show -cause notice was issued to reject the claim as barred by limitation. It was also alleged that the tax was paid without raising any protest and it was asserted by the department that the tax was correctly paid as tax claimed as refund was recovered from the customers. The lower authorities rejected the refund claim. On an appeal before the Commissioner (Appeals), he allowed the refund claim holding that the Auctioneers service was came into Service Tax net w.e.f. 1.5.2006 and prior to that the respondent was not liable to pay the service tax in the category of 'Business Auxiliary Services' following the judgment of Karvey Consultant Ltd. v. CCB, Hyderabad : 2008 (10) STR 166 (Tri -Bang), wherein it was held that a newly introduced service was not a part of any pre -existing service. He further held that the claim is not time barred following the ratio of the case of Mafatlal v. UOI : 1997 (89) ELT 247. Aggrieved from the same, the Revenue is before me.

(3.) ON the other hand, the respondent submitted that Auctioneers services have came into service tax net w.e.f. 1.5.2006 and prior to that the same was not liable for service tax under the category of 'Business Auxiliary Services' as held by this Tribunal in the case of Karvy Consultants Ltd. (supra), wherein it was held "when an existing tariff definition remains that same, then the introduction of new Tariff entry would imply that the coverage under the new Tariff for purpose of Tax is an area not covered by the earlier entry. The new entry is an extension of the scope of coverage of Service Tax and not carving out a new entry, from the erstwhile entry.'' The respondent further submitted that they were forced to take Service Tax registration under 'Business Auxiliary Services' and further submitted that they have not received any Service Tax under 'Business Auxiliary Services' category and claimed refund of Service Tax only to the amount, which they have not received from their clients. They also submitted that there are series of judgments that their claim is not barred by limitation and the doctrine of unjust enrichment is not applicable to their case. To support their contention, they placed reliance on several case laws.