Appellants entitled to file refund claim without challenging assessment. Member emphasizes lack of challenge to assessment order.

The appellants were allowed to file a refund claim without challenging the assessment. The Member (Judicial) emphasized that since no order or decision by the Central Excise officer was challenged, the question of challenging the assessment was deemed irrelevant. As the appellants paid service tax based on their own assessment and later sought a refund upon realizing their non-liability, the Member concluded that without an order or decision to challenge, the appellants were entitled to file the appeal against their own assessment. Therefore, the impugned order was set aside, and the appellants' appeal was allowed.

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Issues involved:
Whether the appellants can file a refund claim without challenging the assessmentRs.

Analysis:
The case involves the appellants providing Business Auxiliary service to a company and paying service tax on commission received before a policy change. Post-policy change, they filed a refund claim, rejected by lower authorities citing the decision in CCE, Kanpur Vs. Flock (India) Pvt. Ltd. The main issue is whether the appellants can file a refund claim without challenging the assessment. The appellant's advocate argued that as no order was passed by an adjudicating authority, they were not required to file an appeal. She distinguished cases like Flock (India) Ltd. and Priya Blue Industries Ltd. where assessments/orders were challenged before filing refund claims. The advocate cited precedents like Central Office Mewar Palace Org. Vs. Union of India to support the argument that without an appealable order, a refund claim can be filed. On the contrary, the Departmental Representative contended that since the self-assessment was accepted without challenge, the refund claim was not maintainable, aligning with the Flock (India) Ltd. decision.

The Member (Judicial) analyzed the case, emphasizing that no order or decision by the Central Excise officer was challenged, making the question of challenging the assessment irrelevant. The Member noted that the appellants paid service tax on their own assessment and filed a refund claim upon realizing their non-liability. Citing Nagpur Transwell Power Pvt. Ltd. case, the Member clarified that the appeal under Section 35F of the Central Excise Act is against orders/decisions by subordinate officers, not self-assessment. Precedents like M/s Gimatex Industries Pvt. Ltd. were referenced to support the view that the law does not provide for an appeal against self-assessment. Ultimately, the Member concluded that as there was no order or decision to challenge, the appellants were not entitled to file an appeal against their own assessment. Consequently, the impugned order was set aside, and the appeal by the appellants was allowed.

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