M/s Atlanta Premises Co-operative Society Ltd. vs Commissioner Of CGST, Mumbai South

Heard both sides and perused the records.

The appellant herein is a Co-Operative Society registered Under the Maharashtra Co-operative Society Act, 1960. The appellant is the owner of a building named as "ATLANTA". The appellant provides Membership of Club or Association service and renting of immovable property to various persons and for that purpose, has registered with the Service Tax department. During the disputed period, the appellant had filed a refund claim application in respect of Service Tax paid on such taxable services. The reason for filing such application is that for the earlier period, this Tribunal had allowed the appeal in favour of the appellant, holding that Service Tax cannot be levied under such taxable category of services. The present refund application filed by the appellant was considered favourably by the Department. However, instead of paying the refund amount into the appellant's account, the same was credited to the Consumer Welfare Fund (CWF) in terms of Section 11B(2) of the Central Excise Act, 1944 made applicable to the Service Tax matters in terms of Section 83 of the Finance Act, 1994. The adjudication order dated 30.11.2016 passed by the learned Assistant Commissioner of Service Tax was appealed against by the appellant before the learned Commissioner (Appeals), which was disposed of vide the impugned order dated 10.01.2018. In the said order, the learned Commissioner (Appeals) has upheld the adjudication order and rejected the appeal filed by the appellant. Feeling aggrieved with the impugned order, the appellant has preferred this appeal before the Tribunal.

On a query from the Bench as to whether, the refund claim amount had been returned to the members of the Society or the tenant, the learned Counsel appearing for the appellant submitted that such amount are still appearing in the Books of Account of the appellant as expenditure and refund of said amount to various parties shall be considered on receipt of the same from the Department. From the submissions made by the learned Counsel for the appellant, it is apparent that the disputed refund claim amount has so far not been returned to the members of the Society or the tenants of the immovable property. Thus, in such circumstances, it cannot be said that the appellant has complied with the provisions of Section 11B(2) ibid in fulfilling the doctrine of unjust enrichment. In other words, at this juncture, if any order is passed in allowing the refund benefit in favour of the appellant, then it will be unjustly enriched at the cost of both the members/tenants of the society on one hand and the Government exchequer on the other. Therefore, as per the unambiguous statutory provisions, the refund amount should appropriately be transferred to the Consumer Welfare fund, which has already been held by both the authorities below.

In view of above, I do not find any infirmity in the impugned order passed by the learned Commissioner (Appeals). Accordingly, the appeal filed by the appellant is dismissed.

(Dictated and pronounced in open court)