TaxTMI 
TaxTMI 
2024 (5) TMI 369
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....ellant and upheld the Order in Original [OIO] dated 18.5.2017 passed by the Assistant Commissioner. 2. The appellant provided services to Madhya Pradesh Power Generating Company Ltd. [MPPGCL]. It was entitled to exemption notification no. 25/2012-ST for these services. However, it self assessed and paid service tax and filed ST 3 returns accordingly. 3. On 6.3.2017, it filed a refund application of the service tax paid amounting to Rs. 5,07,76,894/- under section 11B of the Central Excise Act, 1994 [Excise Act] which is made applicable to service tax matters by section 83 of the Finance Act, 1994 [Finance Act]. This application was rejected by the original authority as the application was not filed within one year from the payment of the ....
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....hat this is not a case of rendering a non-taxable service. The service was taxable and the appellant was entitled to an exemption notification which it had not claimed. Therefore, it squarely falls within the scope of service tax and section 11B applies in its full force. 10. Insofar as the reliance of the appellant on the decision of the Larger bench in Balaji Warehouse is concerned, learned authorised representatives point out that this view of the Larger bench of the Tribunal has been overruled by the judgment of the High Court of Delhi in BT (India) Pvt. Ltd. [(2023) 13 CENTAX 89 (Del.)]. Findings 11. We have considered the submissions on both sides and perused the records. The facts of the case are not in dispute. The appella....
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....ents, including self-assessments are appealable and unless the assessment is modified, no refund could be sanctioned so as to change the assessment. The reason for this is the refund proceedings are in the nature of execution proceedings and they cannot be used to re-determine the liabilities. Paragraph 44 of this judgment is reproduced below: 44. The provisions under Section 27 cannot be invoked in the absence of amendment or modification having been made in the bill of entry on the basis of which self-assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refund....
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.... in this judgment was largely based on the provisions of Customs Act but the principle laid down was clear that refund proceedings are only in the nature of execution proceedings and cannot change the assessment. 16. However, there were conflicting orders of different benches of this Tribunal on whether ITC Ltd would apply to refund applications of service tax where there was only self-assessment. The matter was therefore, referred to the larger bench in Balalji Warehouse. Through a majority decision of two to one, the larger bench decided that ITC Ltd. will not apply to service tax matters. This decision has been relied upon by the appellant before us. 17. The same question was before the High Court of Delhi in BT(India) Pvt. Ltd. which....
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....ade. In fact, the Supreme Court in ITC Limited had described refund proceedings to be akin to execution proceedings. 18. Thus, the legal position is loud and clear. Refund proceedings are in the nature of execution proceedings and they cannot modify an assessment including self-assessment. Refund can only be sanctioned or denied as per the assessment- be it self-assessment by the assessee or the best judgment assessment by the officer. This legal position will not and cannot vary depending on which side it favours. The law laid down in ITC Ltd. and BT (India) Pvt. Ltd. applies whether the claimant will get refund as a result or will be denied refund as a result. In neither case can the refund, which is in the nature of an execution procee....