Where it is found that that service tax has been paid in excess wrongly - department should refund the same on making an application for refund the same.

In the instant case, CESTAT has refused to allow the claim of refund on the ground that

"…..that since the assessee had not challenged the assessment order, the claim of refund cannot be entertained, so as to indirectly challenge the assessment order, without filing statutory appeal, against the assessment order. It was also found, that in the case in hand, the order is appelable and no appeal having been filed, the claim of refund has no merit, and the appeal was dismissed."

In this matter, Honorable High Court of Rajasthan held that:

"At the outset, it may be observed, that under the scheme of things, starting from Section 73 onwards it is clear, that the assessee himself is to deposit service tax in form ST-3, there is no provision for assessment. Passing of assessment order is contemplated only in cases where the notice is issued under Section 73, and it is found, that service tax is not levied or paid, or has been short levied or short paid etc. In that view of the matter, the very basis/reasonings given by the learned Tribunal, simply have no legs to stand. Admittedly, the appeal under Section 85 lies against a specific order of the concerned authority in Form ST-4, which requires to disclose, designation and address of the officer passing the decision or order appealed against, and the date of decision or order, so also the date of communication of the decision or order appealed against to the appellant. Admittedly, when no order capable of being appealed against, had ever been passed, it cannot be said that the assessee could file appeal against the assessment order, and not having so filed appeal he cannot lay the claim of refund. Thus, the order of the Tribunal cannot sustain."

[For full text of judgment - visit 2008 -TMI - 31747 - HIGH COURT RAJASTHAN]

Refund of excess service tax: taxpayers may claim refund even where no assessment order capable of appeal exists. A taxpayer who has paid service tax in excess may seek refund by application; a formal assessment order is not required to entertain such a claim where no order capable of appeal was ever passed. The assessment machinery operates only when a notice is issued, and refusal to refund solely because no statutory appeal was filed against a non existent assessment order is untenable.