TaxTMI 
TaxTMI 
2017 (5) TMI 1199
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....h the introduction of Section 96 (J) (1) of Finance Act, 2011, the service tax on Club or Association Service was exempted for the period June 2005 to March 2008, and appellants did not pay service tax for the said period, on their belief that membership fee and all other fee collected by them is not taxable based on series of judgment which laid that the principle of mutuality would exclude the associations, such as that of appellant from the purview of service tax under Club or Association Services. 2. in EA 2000 audit conducted by the department for the period 2006-07 to 2010-11, certain objections were raised regarding the non-payment of service tax of Rs. 20,62,239/- on amount realized by the appellant for fees on issuing Country of Origin certificate to its members. Out of the above amount raised in audit objection, appellant paid an amount of Rs. 10,65,541/- on 08.03.2012. The balance of Rs. 9,96,698/- was not paid by the appellant which pertains to the period 2006-07 and 2007-08. The appellant believed that they are not liable to pay this amount. There upon, department issued a letter dated 21.03.2012 calling upon the appellant to pay balance of Rs. 9,96,....
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.... To this, the department vide letter dated 19.08.2013 informed the appellant that an amount of Rs. 9,96,698/- paid by them under protest for the years 2006-07 and 2007-08 is treated as payment made in acceptance of liability and that there a is no provision to make payment of Service tax under protest. The appellant replied vide letter dated 16.09.2013 stating that the appellant has marked their protest and that it should not be concluded that the payment is made in acceptance of liability. They also informed that the said payment having made under mistake of law / mistake of fact, they are eligible to file a refund claim for refund under Section 11B of Central Excise Act, 1944. 5. There upon, the appellant filed refund claim dated 04.12.2013 claiming refund of the amount of Rs. 9,96,698/- paid by them as service tax for the period 2006-07 to 2007-08 on the direction of the department. This refund claim is the subject matter of the present appeal. In response to the refund claim, instead of issuing a show cause notice, the department issued a deficiency memo putting forward the grounds for rejection of the refund claim. The main ground raised in the said deficien....
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....in the case of The Cricket Club of India Ltd., Vs CST, Mumbai [2015-TIOL-2062-CESTAT-MUM] and Goa Mineral Ore Exporter's Association Vs CCE, Goa [2015-TIOL-2670 CESTAT-MUM]. It was vehemently argued by the Ld. Counsel that by not issuing a show cause notice when the appellant has disputed the liability to pay the service tax by marking protest, the department has denied the appellant the right to contest the liability to pay said amount. That without issuing a show cause notice under Section 73 of the Act and thereby without determining the tax liability, the department has retained the amount on the unilateral decision that the appellant has admitted the liability. The judgment in the case of ICICI Bank Ltd., Vs The Union of India and Others [2015-TIOL-1164-HC-Mumbai-ST] was relied upon by the Counsel to support these arguments. The Ld. Counsel drew support from the judgment in the case of M/s Sri Vishnu Cements Ltd., vs CC, CE & ST, Hyderabad-IV [2017-TIOL-368-CESTAT-HYD] and submitted that facts in the said decision are identical to the present case. 9. The Ld. AR Sh. Arun Kumar reiterated the findings in the impugned order. The main argument put for....
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.... The words used are 'decision' or 'order'. In many judgments, the Tribunal as well as Hon'ble High Courts have held that a letter issued informing the decision which affects the right of the assessee can be considered as an appealable order. In the case of Instant Clearing Services (l) Pvt Ltd. vs CC, Chennai [2016 (341) ELT 468 (Tri-Chennai)], Mandvi Casting Pvt Ltd. Vs CE, Goa [2012 (276) ELT 103 (Tri-Mum)] and Bhagwati Gases Ltd. Vs CCE, Jaipur-I [2008 (226) ELT 469 (Tri-Del)] the instances were communications issued by department, can constitute an appealable order or not was discussed. It was held that when such communication/letter affects the right of assessee/party then appeal was maintainable. The department cannot take advantage of such judgments to wriggle out of their responsibility to adjudicate an issue and pass speaking order. The law laid in such judgments are intended to assist the assessee o who is deprived of the natural justice of issuance of show cause notice and adjudication proceedings. Therefore this argument of department deserves to be brushed aside. 11. Section 73 of the Finance Act deals with recovery of....
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....inery for determination of amount due under Section 73 of the Act (ibid) extends to situation where the assessee makes payment as pointed out by department and raises dispute on the said payment. The department ought to have initiated proceedings for determination of the amount due. The unilateral decision taken by department by issuing a letter to retain the amount as acceptance of liability by appellant, gives the letter a cloak of recovery proceeding as under Section 87 of the Act (ibid) which the law does not permit. 13. The discussion made by the Hon'ble Court in the case of ICICI Vs Union of India in a similar situation is note worthy and reproduced as under: 42. It is contended by Shri Pradeep Jetly that Section 73 of the said Act would not be applicable to the present case, inasmuch as, the very first line shows that the provisions can be invoked when the tax has not been "levied or paid". The learned Counsel submits that when the assessee has paid the tax, provisions of Section 73 cannot be invoked. We find that the said contention deserves to be heard only to be rejected. On one hand, Revenue coerces assessee to pay Service Tax on threat....
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....of Section 83 will have to be read as a part of the said Act, is concerned, again we are at pains to say that the said contention at least at the behest of the Revenue does not merit consideration. Perusal of provisions of Section 11B of the Central Excise Act in contradiction with the provisions of Sections 72 and 73 would reveal that, Sections 72 and 73 of the said Act provide a complete inbuilt machinery thereby giving safeguard to the assessee of personally being heard or representation of the assessee being considered prior to determination of the amount payable on account of Service Tax. However, under Section 11(b), the only provisions which can be said to have some safeguard in case of assessee is that the authority has to arrive at a satisfaction. However, no such provision of either giving personal hearing as provided under Section 72 or the representation of an assessee being considered as provided in Section 73 could be found in Section 11(b) of the said Act. We are again at pains to say that the conduct of the Revenue, firstly coercing the assessee to make payment and thereafter not deciding the returns under Section 72 or not taking recourse to Section 73, and asking ....