2009 (1) TMI 138

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..... A/57/WZB/2009-CIV/SMB dt. 15.1.2009 certified on 1.2.2009 in Appeal No. ST/104/2008) Shri N.A. Sayed, JDR for Appellants Shri Vipin Jain, Adv. for Respondents Per A.K. Srivastava: Heard both the sides and perused the records. 2. In the instant case, the sanction of refund of Rs. 4,29,223/- by the lower authorities by way of re-credit has been objected to by the Revenue on the ground ....

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....ed by them and no appeal was filed against the final assessment of ST-3 Return in terms of Section 85 of the Finance Act, 1994 as amended. It is the contention of the Revenue that so long as the order of assessment stands unchallenged, the Service Tax would be payable as per the final assessment order. If the assessee was not satisfied with the final assessment order, it was mandatory on his part ....

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....rder of assessment could not be challenged in refund claim without filing statutory appeal against the assessment order. Accordingly, the refund claim was held to be not maintainable by the Tribunal. On appeal by the party before the Hon'ble Rajasthan High Court, the High Court in its judgment reported in 2008 (12) STR 545 (Raj.) overruled the Order of the Tribunal and held as under: "8. At the....

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....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." 5. I find that aforesaid judg....