TaxTMI 
TaxTMI 
2017 (3) TMI 1026
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.... road on which M/S Rashtriya Chemicals & Fertilisers paid the service tax as recipient of service but also involved activities conforming to section 65(23) of Finance Act, 1994 which defines 'cargo handling service' on which tax was unpaid. The assessee paid Rs. 10,93,242 for October 2009 to March 2014 on 29th March 2014 and 5th July 2014 'under protest' on the basis of observations of audit. 2. Subsequently, this amount was claimed as refund from Nanded Division on 24th September 2014 as tax not due but paid. The original authority issued notice dated 10th December 2014 proposing to reject the refund claim on what was described as 'deficiencies', among which was the correctness of the levy, and passed a final....
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....n filed subsequently because no notice for demand of this amount had been issued by the competent authority. It is also not in dispute that the challenge before the Tribunal is restricted to the rejection of refund claim and that refund claim has been rejected on the ground that tax is leviable, that the finding in M/S Bombay Gujrat Roadways cannot be a ground for assessee to be entitled to refund and that the decision of the Tribunal cited by appellant had been appealed against. 6. That the decision in re Dalveer Singh had been appealed against does not erase its precedential value in the absence of a stay is unarguable and the contention that the first appellate authority is not bound by the precedent is contrary to the canons of judicia....
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....and concluded by proceedings under section 73 of Finance Act, 1944, but to refunds under section 11B of Central Excise Act, 1944 as made applicable to Finance Act, 1944. Just as a claim for refund on ground of non-taxability should be accompanied by a decision in appeal upholding that contention, a rejection of claim that tax not due was paid incorrectly would have to be backed by an order of assessment. 10. Doubtlessly, in the era of self-assessment, the payment of tax by an assessee suffices to constitute collection of tax as assessed without the need for an assessment order or demand. Nevertheless, the prescription in section 75 is clear that delayed payment of tax must need to be accompanied by interest at the appropriate rates. And a ....
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....terest, if any, paid on such duty- (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from or paid by, him and the incidence ....