TaxTMI 
TaxTMI 
TaxTMI 
2024 (6) TMI 623
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....st to the service provider, who added the value of such free of cost supply material in the taxable value, assessed the tax liability and paid the service tax, accordingly. 3. The issue of whether the value of material supplied free of cost by the service recipient was not includible in the taxable value arrived for assessment of the service tax liability by the service provider was considered by the Tribunal in the case of Bhayana Builders Pvt. Ltd. [2015 (37) STR 525 (Tri. -Del)] holding it to be ultra-vires, which was subsequently affirmed by the Apex Court in the case of Commissioner Vs. ATR Constructions Pvt Ltd. [2015 (39) STR J 30] Thus, vide order of the Apex Court dated 27.01.2015, the issue was finally decided that the value of free materials supplied by the service receiver to the works contractor will not form part of consideration for the calculation of service tax liability and hence, no service tax was leviable thereon. 4. The appellant then filed the refund claim of Rs.9, 21,029/- on 6.01.2016 for the 'Work Contract Services' on behalf of the service provider, which was rejected as being time barred. On appeal, the impugned order affirmed the order-in-original. Be....
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....- "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 refunding amount. It is not assessment or reassessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, reassessment is not permitted nor conditions of exemption can be adjudicated. Re-assessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or re-assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon ....
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....roceedings. As the Supreme Court had held in the decisions aforenoted, the authority while considering an application for grant of refund neither sits in appeal nor is it entitled to review an assessment deemed to have been made. In fact, the Supreme Court in ITC Limited had described refund proceedings to be akin to execution proceedings. 9. Another question to be considered is, if one assessee can claim refund on the basis of any order passed in case of any other assessee without challenging or otherwise getting its own assessment modified. This question was considered by a nine-member Bench of Supreme Court in Mafatlal Industries Ltd. Vs. Union of India [1997 (89) ELT 247 (SC)] The question was framed in paragraph 22 of the judgement as follows:- "22. There is as yet a third and an equally important category. It is this : a manufacturer (let us call him "X") pays duty either without protest or after registering his protest. It may also be a case where he disputes the levy and fights it out up to first Appellate or second Appellate/Revisional level and gives up the fight, being unsuccessful therein. It may also be a case where he approaches the High Court too, remains unsucces....
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....very of mistake of law". The question was answered in paragraph 99(iv) of the judgement as follows:- " 99. The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment. ............ (iv) is not open to any person to make a refund claim on the basis of a decision of a Court or Tribunal rendered in the case of another person. He cannot also claim that the decision of the Court/Tribunal in another person's case has led him to discover the mistake of law under which he has paid the tax nor can he claim that he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. A person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment of levy has become final in his case, he cannot seek to reopen it nor can he claim refund without reopening such assessment/order on the....