AI Drafter 
TaxTMI 
TaxTMI 
2023 (9) TMI 1478
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.... made by the Division Bench of this Tribunal in the case of M/s VIAVI Solutions India Pvt. Ltd., Service Tax Appeal Nos. 60064/2020, this Tribunal vide order dated 08.10.2021 and subsequently vide order dated 04.02.2022 in M/s Shree Balaji Warehouse and M/s Om Shree Sairam Service Tax Appeal No. 60998- 60999/2018 and Service Tax Appeal No. 61000 of 2018. 2. After taking note of the contrary view taken by the Mumbai Bench in Karanja Terminal and Logistics Pvt. Limited vs. Assistant Commissioner- Mumbai South- 2021-TIOL-76-CESTAT-MUM and Ahmedabad Bench in the case of M/s Cadila Healthcare vs. CST-ST, Ahmedabad -2021-TIOL-257-CESTAT-AHM vide order dated 27.04.2021, the Division Bench in the referral order considered the applicability of the judgement of the Supreme Court in the case of ITC Limited vs. CCE, Kolkatta-2019 (368) ELT 216 (SC) to claims filed for refund of service tax. 3. The Hon'ble Supreme Court in the case ITC Limited cited (supra) held that a 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. Further, it was held that it would not be within....
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....n the provisions of Customs Act and hence not applicable to a refund of claim filed under a service tax law. He also submits that a return under service tax law submitted on the basis of self assessment could not be equated with a bill of entry endorsed by proper officer under the Customs Act. Accordingly, a return under the service tax law could not be treated as an order passed by the proper officer for the purpose of filing an appeal. 10. He further submits that the definition of assessment in Section 2(2) of the Customs Act, 1962 was amended in 2011 to include 'self assessment'. The' scheme of assessment (pre-amendment) was that Section 17 of the Customs Act mandated the proper officer to pass an order of assessment on filing of the bill of entry, after due examination and testing of the imported goods. It was incumbent on the proper officer to pass an order of assessment under Section 17 of the Customs Act. He further submits that after amendment vide Finance Act, 2011 (w.e.f. April, 8 2011) Section 17 allows bills of entry to be self assessed by the importer subject to verification by the proper officer. Further, the proper officer has discretion to reassess duty and pass ....
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.... service tax law which provides for verification/endorsement by the proper officer for self assessed return filed by the tax payer. Further, the appeal mechanism under the service tax law is different from the appeal mechanism provided under the Customs Act. Under the service tax law, an appeal can only be filed against a decision/order passed by the adjudicating authority but the adjudicating authority is not defined under the service tax law, but defined under Section 2(a) of the Central Excise Act, 1944 as under:- "Section 2. Definitions In this Act, unless there is anything repugnant in the subject or context, (a) "Adjudicating Authority" means any authority competent to pass any order or decision under this Act, but does not include the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) 10[Commissioner of Central Excise (Appeals) or Appellate Tribunal;]" Further, the tax payer who is furnishing the return under Section 70 of the Finance Act cannot be treated as an Adjudicating Authority to pass any order or decision for the purpose of fulfilling the condition for appeal envisaged under Sectio....
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....ni Narayan Dalal and Another, (2001) 10 Supreme Court Cases 231 • Collector of Central Excise, Pune v. Tata Engineering and Locomotives Co. Ltd., (2003) 11 Supreme Court Cases 193 • Birla Corpn. Ltd. v. Commissioner of Central Excise, (2005) 6 Supreme Court Cases 95 • Jaiswals Neco Limited v. Commissioner of Central Excise, Nagpur, (2007) 13 Supreme Court Cases 807 • Boving Fouress Ltd. v. Commissioner of Central Excise, Chennai, 2006 (202) E.L.T. 389 (S.C.) It has been held in all these cases that if no appeal is filed against an earlier order or the earlier appeal involving the identical issue was not pressed by the Revenue, the Revenue is not entitled to press the other appeals involving the same question. 19. Ld. Counsel also brought to our notice that the judgement of the Division Bench of Mumbai Tribunal in the case of Karanja Terminal and Logistics Pvt. Limited cited (supra) has been set-aside by the Hon'ble Bombay High Court in CEA No. 2 of 2022 decided vide its order dated 13.01.2023 and restored the matters to the file of the Tribunal to decide the same afresh as per law. 20. Shri Rajesh Mehta, Ld. Chartered Acc....
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....urther submits that under the Finance Act and the Service Tax Rules, there is no provision wherein the returns filed by the assessee are approved/ratified by the assessing officer and there is no administrative circular also which provides for such a procedure for approval of the returns filed by the assessee nor it is done as the matter of practice. Once that exercise is not done, the ST-3 Returns filed by the assessee as per their own assessment cannot be equated to an order of assessment. She also submits that there is vast difference between the self assessment and self assessment which is further approved/ratified by the assessing officer. 24. In the first scenario, it is just self assessment which is not an order whereas in the second scenario, due to the approval of the self assessment by the assessing officer, (whether by way of speaking order or otherwise) it is equated to an assessment order as per the judgement of the Hon'ble Supreme Court in the case of ITC Limited cited (supra). 25. Further, the Ld. Counsel by refer to the definition of the word 'decision or order' submitted that the decision implies the exercise of a judicial determination as a final and definit....
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.... submits that the Hon'ble Apex Court after discussing the period prior and after the amendment in Section 17 of the Customs Act by Finance Act 2011, the Hon'ble Apex Court in ITC Limited cited (supra) has laid down the law that order of self assessment is none the less an assessment order passed under the Act and that obviously it would be appealable by any person aggrieved thereby. 30. Thereafter, she refer to the decision of the Hon'ble Rajasthan High Court in the case of Central Office Mewar Palace Organisation cited (supra) holding that refund claim under the service tax is maintainable without filing the appeal against the self assessment made through filing of returns which has not been upheld by the Hon'ble Apex Court on the ground that the said decision was not under the Customs Act and thereby impliedly set-aside the same. 31. She further submits that the decision of the Ahmedabad Bench in the case of M/s Cadila Healthcare cited (supra) is contrary to the law laid down by the Hon'ble Apex Court in ITC Limited cited (supra) wherein the Hon'ble Supreme Court laid down that order of assessment is an 'assessment order' and appeal can be filed against the said order of se....
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....ove said issue, it will be proper to reproduce the relevant provisions of the Customs and Service Tax law as applicable to assessment, refund and appeals :- Section 2 (2)-Definition "[(2) "assessment" means determination of the dutiability of any goods and the amount of duty, tax, cess or any other sum so payable, if any, under this Act or under the Customs Tariff Act, 1975 (51 of 1975) (hereinafter referred to as the Customs Tariff Act) or under any other law for the time being in force, with reference to (a) the tariff classification of such goods as determined in accordance with the provisions of the Customs Tariff Act; (b) the value of such goods as determined in accordance with the provisions of this Act and the Customs Tariff Act; (c) exemption or concession of duty, tax, cess or any other sum, consequent upon any notification issued therefor under this Act or under the Customs Tariff Act or under any other law for the time being in force; (d) the quantity, weight, volume, measurement or other specifics where such duty, tax, cess or any other sum is leviable on the basis of the quantity, weight, volume, measurement or othe....
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....the removal of doubts, it is hereby declared that in cases where an importer has entered any imported goods under section 46 or an exporter has entered any export goods under section 50 before the date on which the Finance Bill, 2011 receives the assent of the President, such imported goods or export goods shall continue to be governed by the provisions of section 17 as it stood immediately before the date on which such assent is received.] ^2[27. Claim for refund of duty.-^3[(1) Any person claiming refund of any duty or interest, - (a) paid by him; or (b) borne by him, may make an application in such form and manner as may be prescribed for such refund to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest: Provided that where an application for refund has been made before the date on which the Finance Bill, 2011 receives the assent of the President, such application shall be deemed to have been made under sub-section (1), as it stood before the date on which the Finance Bill, 2011 receives the assent of the President and the s....
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....r of Customs] 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) the ^3 [duty and interest, if any, paid on such duty] paid by the importer, ^4 [or the exporter, as the case may be] if he had not passed on the incidence of such ^3 [duty and interest, if any, paid on such duty]to any other person; (b) the ^3 [duty and interest, if any, paid on such duty] on imports made by an individual for his personal use; (c) the ^1 [duty and interest, if any, paid on such duty] borne by the buyer, if he had not passed on the incidence of such ^1 [duty and interest, if any, paid on such duty] to any other person; (d) the export duty as specified in section 26; (e) drawback of duty payable under sections 74 and 75; (f) the ^1 [duty and interest, if any, paid on such duty] borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify; ^2[(g) the duty paid in excess by the importer before an order permitting clearance of goods for home consumption is made where- ....
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....pal Commissioner of Customs or Commissioner of Customs] may, in cases cases where it is not feasible to make entry by presenting electronically ^5 [on the customs automated system], allow an entry to be presented in any other manner: Provided further that] if the importer makes and subscribes to a declaration before the proper officer, to the effect that he is unable for want of full information to furnish all the particulars of the goods required under this sub-section, the proper officer may, pending the production of such information, permit him, previous to the entry thereof (a) to examine the goods in the presence of an officer of customs, or (b) to deposit the goods in a public warehouse appointed under section 57 without warehousing the same. (2) Save as otherwise permitted by the proper officer, a bill of entry shall include all the goods mentioned in the bill of lading or other receipt given by the carrier to the consignor. ^9[(3) The importer shall present the bill of entry under sub-section (1) before the end of the^ next day following the day (excluding holidays) on which the aircraft or vessel or vehicle carrying the goods arrives at a custom....
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....rges in such manner as may beprovided by rules.] ^6 [(2) ^7 [The importer shall pay the import duty- (a) on the date of presentation of the bill of entry in the case of self assessment; or (b) within one day (excluding holidays) from the date on which the bill of entry is returned to him by the proper officer for payment of duty in the case of assessment, reassessment or provisional assessment; or (c) in the case of deferred payment under the proviso to sub-section (1), from such due date as may be specified by rules made in this behalf, and if he fails to pay the duty within the time so specified, he shall pay interest on the duty not paid or short-paid till the date of its payment, at such rate, not less than ten per cent. but not exceeding thirty-six per cent. per annum, as may be fixed by the Central Government, by notification in the Official Gazette.] ^8 [Provided that the Central Government may, by notification in the Official Gazette, specify the class or classes of importers who shall pay such duty electronically: Provided further that] where the bill of entry is returned for payment of duty before the commence....
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..... Scheme for submission of Returns through Service Tax Preparers. - (1) Without prejudice to the provisions of section 70, the Board may, by notification in the OfficialGazette, frame a Scheme for the purposes of enabling any person or class of persons to prepare and furnish a return under section 70, and authorise a Service Tax Return Preparer to act as such under the Scheme. (2) A Service Tax Return Preparer shall assist the person or class of persons to prepare and furnish the return in such manner as may be specified in the Scheme framed under this section. (3) For the purposes of this section, - (a) "Service Tax Return Preparer" means any individual, who has been authorised to act as aService Tax Return Preparer under the Scheme framed under this section; (b) "person or class of persons" means such person, as may be specified in the Scheme, whois required to furnish a return required to be filed under section 70. (4) The Scheme framed by the Board under this section may provide for the following, namely:- (a) the manner in which and the period for which the Service Tax Return Preparer shall beauthorised under sub-s....
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.... justice that "No one should be a judge in his own case". 38. Further, we note that there is vast difference between self assessment and self assessment which is further approved/ratified/endorsed by the assessing officer. We also find that the Ahmedabad Bench of the Tribunal in their judgement in the case of M/s Cadila Healthcare cited (supra) has considered the provisions of service tax and Customs Act and also the judgement of the Hon'ble Apex Court in the case of ITC Limited cited (supra) relating to maintainability of refund without challenging the assessment/self assessment in appeal. 39. After considering the provisions of both the statutes and the decision of ITC Limited's case, the Division Bench of Ahmedabad Tribunal in Cadila Healthcare's case cited (supra) came to the conclusion that the ratio of ITC Limited cited (supra) is not applicable to refund claims filed under the service tax law. The relevant findings are provided in Para 4.6 and 4.7 as under:- "4.6 Revenue have strongly argued that appellant„s refund is not maintainable on the ground that the self assessment of Service Tax payment has not been challenged by filing appeal before the Commiss....
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....s) only in case an order is passed by an officer below the rank of Principal Commissioner or Commissioner of Central Excise. In the case of self assessment of Service Tax, there is no order of assessment passed by any officer below the rank of Principal Commissioner or Commissioner of Central Excise. Therefore, there is no provision corresponding to section 47(2) of Customs Act, 1962 in the Finance Act, 1994. Therefore, there is a clear distinction between the assessment under Customs and Service tax. Therefore, ratio 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 re....
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....ation towards services provided to its partnership firm M/s. Zydus Healthcare? (D) Whether in the facts and circumstances of the case and law, the Hon‟ble Tribunal was correct and justified in holding that the services provided by a partner to its partnership firm do not fall under the ambit of services as per Finance Act, 1994 and that the remuneration received from the partnership firm cannot be treated as consideration against the service provided by partner to its partnership firm since remuneration was other than sharing of profit between partners." 42. Further, the appeal of the Revenue before the Hon'ble High Court was finally dismissed and thereafter, the Revenue has not filed any appeal against the said judgement before the Hon'ble Apex Court. 43. Now, the question arises can the department raised the issue of maintainability after choosing not to contest the same before the Hon'ble High Court of Gujarat in the case of M/s Cadila Healthcare cited (supra). On this issue, we are of the opinion that the department cannot take a different stand on the disputed issue against the appellant when it has accepted the same against assessee in the case of M/s Cad....
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....ra 45 has observed as under:- "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." 48. The department's contention that the Hon'ble Apex Court in ITC Limited cited (supra) has set-aside the judgement of Hon'ble Rajasthan High Court, is in our view not correct because that judgement was not in appeal before the Hon'ble Apex Court and the Hon'ble Apex Court in Para 45 cited (supra) has observed that the reasoning given therein is not applicable to the Customs matters. The Hon'ble Apex Court in the case of ITC Limited cited (supra) was only considering the provisions of the Customs Act and not the provisions of Finance Act, 1994 and hence rightly rejected the reasoning given by the Hon'ble High Court in the service tax matters. 49. In our considered view, the said judgement of Hon'ble Rajasthan High Court still holds the field even post ITC Limited and the judgement of ITC Lim....
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....ssessment, the goods may, without prejudice to any other action which may be taken under this Act, be re-assessed to duty. (5) Where any assessment done under sub-section (2) is contrary to the claim of the importer or exporter regarding valuation of goods, classification, exemption or concessions of duty availed consequent to any notification therefor under this Act, and in cases other than those where the importer or the exporter, as the case may be, confirms his acceptance of the said assessment in writing, the proper officer shall pass a speaking order within fifteen days from the date of assessment of the bill of entry or the shipping bill, as the case may be." 25. Section 17 as amended by Finance Act, 2011 is extracted hereunder : "17. Assessment of duty. - (1) An importer entering any imported goods under Section 46, or an exporter entering any export goods under Section 50, shall save as otherwise provided in Section 85, self-assess the duty, if any, leviable on such goods. (2) The proper officer may verify the self-assessment of such goods and for this purpose, examine or test any imported goods or export goods or such part thereof as ma....
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....o be passed in "across the counter affair". 42. It was contended that no appeal lies against the order of self-assessment. The provisions of Section 128 deal with appeals to the Commissioner (Appeals). Any person aggrieved by any decision or order may appeal to the Commissioner (Appeals) within 60 days. There is a provision for condonation of delay for another 30 days. The provisions of Section 128 are extracted hereunder : "128. Appeals to [Commissioner (Appeals)]. - (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a [Principal Commissioner of Customs or Commissioner of Customs] may appeal to the [Commissioner (Appeals)] [within sixty days] from the date of the communication to him of such decision or order : [Provided that the Commissioner (Appeals) 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....
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....l and set-aside the judgement of the Hon'ble High Court of Delhi and Madras as provided in Para 48 which is reproduced herein below:- "48. Resultantly, we find that the order (s) passed by Customs, Excise, and Service Tax Appellate Tribunal is to be upheld and that passed by the High Courts of Delhi and Madras to the contrary, deserves to be and are hereby set aside. We order accordingly. We hold that the applications for refund were not maintainable. The appeals are accordingly disposed of. Parties to bear their own costs as incurred." 52. In view of the above, it is evident that the scheme of assessment and clearance of goods imported is different from payment of service tax. In the scheme of clearance of imported goods, at any customs station, even if there is no direct intervention by the officers at the stage of assessment, there is intervention by the system which is put in place. The system as per the parameters fixed, checks the bills of entry, filed by the importer, for the correctness of classification and duty. Only when the system approves the duty payable, the importer proceeds to pay the applicable duty. Therefore, there is a system of intervention by the ....
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....parate Order (Binu Tamta) Member (Judicial) (P. Anjani Kumar) Member (Technical) BINU TAMTA: 56. I had the occasion of going through the draft judgement prepared by my esteemed Brother, Shri S. S. Garg Member (Judicial) but have not been able to agree with the view taken therein. I would therefore like to take a dissenting view as given below. 57. The present appeals are listed before this Larger Bench having found inconsistency between the two decisions of the Tribunal headed by two Member Bench. In the matter of M/s VIAVI Solutions India Pvt. Ltd., Service Tax Appeal Nos. 60064/2020, this Tribunal vide order dated 08.10.2021 and subsequently vide order dated 04.02.2022 in M/s Shree Balaji Warehouse and M/s Om Shree Sairam Service Tax Appeal No. 60998-60000/2018 referred the appeals for consideration of the Larger Bench, framing the issue as under: "Whether refund claim of service tax is maintainable in absence of any challenge to assessment or self-assessment in appeal or not? 58. The Tribunal (Mumbai Bench) in Karanja Terminal and Logistics Pvt. Limited vs. Assistant Commissioner- Mumbai South- 2021-TIOL-76-CESTAT-MUM took the view that the claim for r....
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....Court in the case of ITC Limited (supra) concluded that Bill of Entry by virtue of endorsement /verification by the proper officer becomes an 'order of assessment' against which an appeal can be filed under Section 128 of the Customs Act and therefore the interpretation placed in the said judgement cannot be made applicable to the service tax law as according to him the scheme of assessment and appeal under the service tax law are entirely different from the customs law. He further submitted that a return filed under section 70 of the Finance Act, 1994 cannot be treated as an assessment order as there is no provision in the said Act which provides for verification/ endorsement by the proper officer of the self assessed returns. Referring to the provisions of Section 85 of the Finance Act, 1994 which provides for an appeal to be filed by any person aggrieved by the decision or order passed by the adjudicating authority and also relying on the definition of the term 'adjudicating authority' as defined in Section 2(a) of the Central Excise Act, 1944, the tax payers cannot be treated as an adjudicating authority to pass any order or decision so as to file an appeal under section 85. In....
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...., even an endorsement on the bill of entry would amount to an order of assessment. The proceeding for refund are in the nature of execution of decree and order and hence the same is not maintainable without challenging the order of assessment in appeal. According to her, no doubt the decision of the Supreme Court in ITC Limited (supra) was with reference to the provisions of the Customs Act, however, the principle thereto would equally apply to the refund of service tax and therefore the present appeals needs to be rejected. Learned Authorised Representative submitted that the judgement in ITC Limited (supra) is squarely applicable and is not restricted only to the bills of entry endorsed by the proper officer under the Customs Act. She also submitted that there is no disparity in the definition of the term 'assessment' provided under the provisions of the Customs Act and the Service Tax as both includes the concept of 'selfassessment' within the meaning of 'assessment'. She referred to various provisions of the Service Tax Act, 1994 and Rules made thereunder and in particular Section 73(3) and Rule 7B, to say that the assessee has an option of revision to correct the mistake or om....
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.... of self-assessment is an order of assessment as per Section 2(2), as such, it is appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to pass a reasoned/ speaking order in the situation in case on verification, self-assessment is not found to be satisfactory, an order of reassessment has to be passed under Section 17(4). Section 128 has not provided for an appeal against a speaking order but against "any order" which is of wide amplitude. The reasoning employed by the High Court is that since there is no lis, no speaking order is passed, as such an appeal would not lie, is not sustainable in law, is contrary to what has been held by this Court in Escorts. 47. When we consider the overall effect of the provisions prior to amendment and post-amendment under the Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained under 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 any per....
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.... Tariff Act) or under any other law for the time being in force, with reference to- (a) the tariff classification of such goods as determined in accordance with the provisions of the Customs Tariff Act; (b) the value of such goods as determined in accordance with the provisions of this Act and the Customs Tariff Act; (c) exemption or concession of duty, tax, cess or any other sum, consequent upon any notification issued therefor under this Act or under the Customs Tariff Act or under any other law for the time being in force; (d) the quantity, weight, volume, measurement or other specifics where such duty, tax, cess or any other sum is leviable on the basis of the quantity, weight, volume, measurement or other specifics of such goods; (e) the origin of such goods determined in accordance with the provisions of the Customs Tariff Act or the rules made thereunder, if the amount of duty, tax, cess or any other sum is affected by the origin of such goods; (f) any other specific factor which affects the duty, tax, cess or any other sum payable on such goods, and includes provisional assessment, self-assessment, re-assessment and any assessment in which the duty assesse....
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.... analysis of the assessment by the concerned officer. In both the cases for assessment of duty, the officer may require the person/importer/exporter to produce any document or other evidence or information as deemed necessary for the purpose of making the assessment and the duty to be levied thereon. The Apex Court in para 33 of the ITC Limited (supra) judgement have analysed the provisions of section 17 of the Customs Act, which is quoted below:- "33. Under the provisions of Section 17 as amended by the Finance Act of 2011, Section 17(1) has provided to self-assess the duty, if any, leviable on such goods by importer or exporter, as the case may be. Self-assessment is an assessment as per the amended definition of Section 2(2). It is further provided that proper officer may verify the self-assessment of such goods, and for this purpose, examine or test any imported goods or exported goods or such part thereof as may be necessary. The power to verify self-assessment lies with the proper officer and for that purpose under Section 17(3), he may require the importer, exporter or any other person to produce such document and furnish such information, etc. If the proper office ....
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....ormal course of business.]; [(3) All such records shall be preserved at least for a period of five years immediately after the financial year to which such records pertain. Explanation.-For the purpose of this rule, "registered premises" includes all premises or offices from where an assessee is providing taxable services.]" "Rule 5A. Access to a registered premises. (1) An officer authorised by the Commissioner in this behalf shall have access to any premises registered under these rules for the purpose of carrying out any scrutiny, verification and checks as may be necessary to safeguard the interest of revenue. (2) Every assessee shall, on demand, make available to the officer authorised under sub-rule reasonable time not exceeding fifteen working days from the day when such demand is made, or such further period as may be allowed by such officer or the audit party, as the case may be,- (i) the records as mentioned in sub-rule (2) of rule 5; (ii) trial balance or its equivalent; and (iii) the income-tax audit report, if any, under section 44AB of the Income-tax Act, 1961 ( 43 of 1961), for the scrutiny of the officer or audit party, a....
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....g returns and acknowledgement of e-filing of the returns, which is quoted herein for ready reference:- E-FILING OF RETURNS: The assesses can electronically file statutory returns of Central Excise and Service Tax by choosing one of the two facilities being offered by the department at present: (a) they can file it online, or (b) download the offline return utilities which can be filled in offline and unloaded to the system through the internet. (a) Steps for preparing and filing returns (i) Returns can be prepared and filed online by selecting the "File Return" option under RET module after logging into the ACES. (ii) All validations are thrown up during the preparation of the return in this mode and the status of the return filed using the online mode is instantaneously shown by ACES. (iii) Returns can also be prepared and filed offline. Assessee downloads the Offline return preparation utility available at http://www/aces.gov.in (Under Download). (iv) Prepares the return offline using this utility. The return preparation utility contains preliminary validations which are thrown up by the utility from time to time. ....
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....er may seek some clarification from the assessee, call for some information, records or documents which should be furnished by the assessee. In case of review and correct of returns by the departmental officers, assesses will receive a message from the application and they can login to the application to view the reviewed returns online. (3) Returns, captured offline using the Downloadable utility and uploaded later on, are further subjected to certain validation checks. Processing of uploaded returns, using the offline versions, is done at the end of one business day and the status can be viewed by the assesses under the "VIEW STATUS" link under "RET" module. Status is described as "UPLOADED", "FILED" or "REJECTED" and they denote as follows: • UPLOADED denotes that return is uploaded and under processing (assesses are advised to view the status after the end of a business day). • FILED denotes that uploaded return is accepted by system. • REJECTED denotes that return is rejected due to errors. (The assesses are required to correct the return and upload it again). (4) There is no provision in ACES application to allow assess....
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....imilarly, the returns filed through offline procedure are also validated by the ACES before its acceptance into the system and the rejected returns can be re-submitted after correction. Even after filing online or by uploading using offline facility, the assessee has an option to modify the returns within a period of 90 days from the date of filing. We are conscious of the fact that in this era of technology not only providing for e-filing but also its automatic verification, reviewing and validation are considered to be sufficient steps for holding it to be an order of assessment and no speaking order is required at this stage. Needs to be mentioned that after the introduction of self assessment under the Customs Act in 2011 which is much later to the concept of self assessment under the service tax in 2001, there is no examination or endorsement or even the signing of the self assessed bill of entry by the custom officer as seems to be evident from the copy of the bill of entry annexed alongwith the written submissions filed by the department. Thus the analogy which the Apex Court applied for concluding that the bill of entry once endorsed is an order of assessment will equally a....
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....ithin a period of (ninety) days from the date of submission of the return under rule 7. Explanation: Where an assessee submits a revised return, the 'relevant date' for the purpose of recovery of service tax, if any, under section 73 of the Act shall be the date of submission of such revised return.]" Under Section 73 of the Finance Act, 1994 the machinery for recovery of service tax not levied or paid or short levied or short paid or erroneously refunded has been provided whereby the Central Excise Officer serves notice on the person chargeable with service tax to show cause as to why he should not pay the duty mentioned in the notice. Sub-section 3 thereof provides for an opportunity to the person concerned in the aforesaid eventualities, to pay the service tax on the basis of his own ascertainment or by the officer before service of notice. Similarly, under rule 7B of the ST Rules (which has been incorporated in the Manual) the assessee has an option to modify or revise the return to correct mistake in the self assessment within a period of 90 days from the date of submitting the returns. In view of these provisions I feel that the submission of the learned counsel f....
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....se Act reads as under: "Definition of Adjudicating Authority in Section 2(a) of the Central Excise Act, 1944 (2)(a) "adjudicating authority" means any authority competent to pass any order or decision under this Act, but does not include the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), (Commissioner of Central Excise (Appeals) or Appellate Tribunal;)". The definition of 'adjudicating authority' when it uses the phrase, "but does not include Commissioner of Central Excise (Appeals) or Appellate Tribunal" denotes an authority who is dealing with the issue for the first time and not an authority who gets jurisdiction by virtue of an appeal. Therefore, under the Finance Act, the officer who actually verifies the returns and either accepts it or rejects it, would be the adjudicating authority and so an appeal would lie thereof. The nomenclature 'adjudicating authority' used in section 85 of the Finance Act would not really make any difference. The decision of the Apex Court in ITC Limited (supra) is squarely applicable on this count also. 73. The concept of 'self assessment' has been introduced in all....
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....nce and the entire exercise will be rendered redundant. This position, in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise duty. Such a position cannot be countenanced. The view taken by us also gains support from the provision in sub-rule (3) of Rule 11 wherein it is laid down that where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf. The provision indicates the importance attached to an order of the appellate or revisional authority under the Act. Therefore, if an order which is appealable under the Act is not challenged then the order is not liable to be questioned and the matter is not to be re-opened in a proceeding for the refund which, if we may term it so, is in the nature of execution of a decree/order. In the case at hand, it was specifically mentioned in the order of the Assistant Collector that the assessee may file an appeal against the order before the Collector (Appeals) if so advised." ....
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....r of the Tribunal cannot sustain. The aforesaid decision was relied on by the assessee in the ITC Limited (supra) judgement, however the Apex Court in the concluding paras did not accept the reasoning adopted by the High Court, having discussed the issue on merits in the earlier part of the judgement and additionally for the reason that the same was not under the Customs Act. Para 45 of the ITC judgement reads as follows:- "45. Reliance was also placed on a decision of the Rajasthan High Court with respect to service tax in Central Officer Mewar Palace Organisation v. Union of India. 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." Therefore, the judgement of the Rajasthan High Court stands impliedly overruled by the Apex Court. Having examined the present case in the light of the decision of the Apex Court in ITC Limited (supra) which is squarely applicable, I have no hesitation in holding that the decision of the Tribunal in Cadila Healthcare (supra) is not a good law. The Tribunal in Cadila Healthcare (supra) fell into error in saying that the ....
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.... was not pressed. I do not agree with the objection raised by the appellants for the simple reason that there is no estoppel in taxation matters and there is no bar in challenging the same issue subsequently just because the department had not challenged the same on earlier occasion particularly when the said controversy is covered by the decision of the Apex Court and therefore the decisions cited are clearly distinguishable. Here the issue stands covered by the interpretation given by the Apex Court in ITC which is binding on all forums. Relying on the decision of the Apex Court in CCE, Raipur Vs. Hira Cement 2006 (194) ELT 257, the Larger Bench of the Tribunal in Steel Strips V CCEx, Ludhiana 2011 (269) ELT 257 observed that:- "Merely because in some cases revenue has not preferred appeal that does not operate as a bar for the revenue to prefer an appeal in another case where there is just cause for doing so or it is in public interest to do so or for a pronouncement by the higher Court when divergent views are expressed by the Tribunals or the High Courts as has been held in the case of C.K. Gangadharan V CIT, Cochin reported in 2008 (228) ELT 497 (S.C.)." 77. I acc....