TaxTMI 
TaxTMI 
2022 (9) TMI 744
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....counsel for the appellant. On 07.03.2022, none appeared on behalf of the appellant and it was adjourned. We, therefore, proceed to decide the matter based on the records available and after hearing the submissions made by the learned Authorized Representative for the Revenue. 2. The issue, in brief, is that the appellant submitted a letter dated 02.09.2009 to the divisional Assistant Commissioner seeking refund of Rs.1,04,66,929/- on the ground that it had paid service tax on the services rendered by it, but such services do not fall within the purview of the service tax as per the CBEC Circular dated 29.01.2009. It is also indicated in the letter that it had collected the amount so paid as service tax from its customers and requested that the amounts may be refunded directly to various customers, as per the list included with the letter. A show cause notice dated 15.12.2009 was issued proposing to reject the refund claim in terms of section 11B of the Central Excise Act, 1944 as made applicable by section 83 of the Finance Act, 1994 to Service Tax matters. The appellant replied that it is eligible for refund and has followed the procedure required in the refund claim and has subm....
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....ed on. By simply giving the names of different customers from whom the service tax was collected, it is not possible to give refund of the eligible amount to the concerned persons, as contended by the appellants in the grounds of appeal. In the facts and circumstances of the impugned case, I do not feel any infirmity in the impugned order. However, as claimed by the appellants in their further submissions, I agree to the aspect of crediting the consumer welfare fund with the amount of eligible refund." 4. Hence, this appeal, on the following grounds: 1. The Commissioner (Appeals) has erred in rejecting the refund claim and they are entitled to the refund claim of the entire amount and the refund claim must be made in favour of the customers who had purchased the apartments. This vital issue was conveniently ignored both at the adjudication stage and also at the first appellate stage. 2. The entire amount was paid by the apartment owners (buyer of flat) who have, in fact taken the liability on their head, and had not passed on the incidence to any other customers. The appellants have collected the amount paid as service tax from the apartment owners or the customers. 5. Learne....
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....8) ELT 216 (SC)]. In this judgment, the Hon'ble Supreme Court considered a batch of appeals covering Customs, Central Excise and Service Tax matters. The common question which was examined and discussed by the Court in the matter is whether after self assessment a refund can be claimed so as to modify the self assessment by the assessee or such an assessment must first be assailed before a higher authority and modified. The larger bench has held that refunds can be sanctioned only if they flow from the assessment already made and they cannot be made so as to modify the assessments (including self assessments). If the assessment is wrongly done resulting in paying a higher amount of customs duty or central excise duty or service tax, the officer sanctioning the refund cannot modify the assessment/self-assessment. The assessment/self assessment must first be assailed before the Commissioner (Appeals). This decision of the Hon'ble Supreme Court has come after the impugned order was passed; nevertheless, it has laid down the law and is binding. Therefore, no refund, whatsoever, could have been sanctioned in this case at all. 9. We have considered the submissions of the learned Authori....
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.... on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of duty of excise and interest, if any, paid on such duty as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the Principal Commissioner of Central Excise or Commissioner of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the duty of excise and interest, if any, paid on such duty paid by the manufacturer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (e) the du....