TaxTMI 
TaxTMI 
2021 (10) TMI 1300
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....2012. Further, the service falls under the category of intermediary service. The refund claim was also rejected by the Commissioner (Appeals). Aggrieved by the said order, the appellant is before us. 3. Before going into the merits of the case, Ld.AR submits that the refund claim is not maintainable in the absence of any challenge of assessment or self-assessment in appeal as held by the Larger Bench of Hon‟ble Apex Court in the case of ITC Limited vs. CCE, Kolkata-IV- 2019 (368) ELT 216 (SC). 4. In rebuttal to the preliminary objection raised by the Ld.AR, the Ld. Counsel for the appellant submits that the refund claim filed by the appellant under section 11B of Central Excise Act, 1944 for service tax paid erroneously is maintainable. 5. It is his submission that the decision in the case of ITC Limited (supra) is not applicable in the case of service tax refund matters as the definition of assessment in section 2(2) of Customs Act, 1962 was amended in 2011 to include "self assessment‟. The scheme of assessment (pre-amendment) was that section 17 mandated the proper officer to pass an order of assessment on filing of the bill of entry, (post-amendment) due examinati....
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....t is his submission that as per section 85 of the Finance Act, 1994 an appeals to the Commissioner of Central Excise (Appeals) can be filed by any person aggrieved by any decision or order passed by adjudicating authority subordinate to the Principal Commissioner of Central Excise or Commissioner of Central Excise. The adjudicating authority means an authority competent to pass an order under this Act. Therefore, he submits that the tax payer who is furnishing the return under section 70 of the Finance Act, 1994 cannot be treated as an adjudicating authority to pass any order or decision for the purpose of fulfilling the condition for appeal envisaged under section 85 of the Finance Act, 1994. In other words, it means that the appeal under section 85 lies only against a specific order of the concerned authority in Form ST-4, which requires disclosure of the designation and address of the officer passing the decision or order appealed against, and the date of decision or order, the date of communication of the decision or order etc. 10. In support of his contention, he relied on the decision of this Tribunal in the case of Cadila Healthcare Limited vs. Commissioner of Service....
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....o of ITC Ltd. case cannot be applied in the matter of Service Tax. We have also noticed that Hon"ble Supreme Court in the ITC case also considered the case of Central Excise duty where the assessments were provisional. In that case, final assessment order was also passed. The assessee paid the amount so demanded. The assessee not being aware of the particular benefit of notification at the time of finalisation of assessment does not claim it. He did not appeal against a speaking order finalising provisional assessment and the assessee filed refund claim under section 11(b) of Central Excise Act, 1952 in respect of duty so paid. It is that refund claim which was rejected by the Supreme Court as not maintainable without challenging the order of final assessment. In these peculiar facts of the case, the Hon"ble Supreme Court has observed that instead of filing the refund claim, the proper remedy was to file the appeal. However, in the present case, there is no order of final assessment by the Service Tax authorities. Therefore, the reliance cannot be placed on case of ITC (supra). 5. We also observed that the judgment of Hon'ble Rajasthan High Court in the case of Central Office of ....
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....eals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days,allow it to be presented within a further period of thirty days. (1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing : Provided that no such adjournment shall be granted more than hree times to a party during hearing of the appeal. (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf." 43. As the order of self-assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression "Any person‟ is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of re-assessment which is appealable but the provisions of Section 128 make appealable any decision or order under the Act including t....
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....n Priya Blue Industries Ltd. (supra). 45. Reliance was also placed on a decision of Rajasthan High Court with respect to service tax in Central Office Mewar Palace Org. v. Union of India - 2008 (12) S.T.R. 545 (Raj.). In view of the aforesaid discussion, we are not inclined to accept the reasoning adopted by the High Court, that too is also not under the provisions of the Customs Act. 46. The decision in Intex Technologies (India) Ltd. v. Union of India has followed Micromax (supra). The reasoning Employed by the High Courts of Delhi and Madras does not appear to be sound. The scope of the provisions of refund under Section 27 cannot be enlarged. It has to be read with the provisions of Sections 17, 18, 28 and 128. 47. When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011,we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self assessment and reassess the duty for making refund; and in case ....