2025 (8) TMI 892

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....peal No. 256/2015 (STA-II) dated 13.10.2015 passed by the Commissioner of Service Tax (Appeals-II), Chennai who has upheld rejection of refund filed for Rs.4,34,881/-. 2. The facts of the case are the Appellants are engaged in the business of erection of transmission lines for the state electricity boards of different state governments, railway electrification of Indian Railways, high voltage substations and engineering consultancy and design. The appellants have obtained service tax registration under the categories of erection commissioning or installation service commercial construction service and maintenance or repair service. The Appellant had filed a refund claim for Rs.4,34,881/- on 17.09.2009 in Form R claiming refund of unutili....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....grounds: - i. The Order-in-Original No. 12/2011(R) dated 03.01.2011 passed by the Deputy Commissioner of Service Tax did not refer to the amount of Rs.8,14,412/- whereas the same was available in Para 8 of the order. ii. Refund application has not been considered in entirety. and, iii. Reference has been made to another order which is not relevant to the facts of the case. 8. The Ld. Advocate Mr. Thangaraj P. appeared for the Appellant and has made additional submissions which were dated 08th May 2025 wherein it was submitted that the Appellant had made reversal in the returns already and that at the time of audit, Appellant had made one more reversal of tax thereby resulting in double payment of tax. Also, the....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ppellant has requested for refund of Rs.3,99,433/- along with interest of Rs.35,488/- paid by them. However, Ld. Commissioner (Appeals) vide Order-in-Appeal No. 256/2015(STA-II) dated 13.10.2015 has rejected the refund on the ground that the Original Adjudication order confirming the demand has not been challenged and in support of the same, he has relied on the Supreme Court's decision in the case of CCE vs Flock (India) Private Limited [2000 (120) ELT 285]. 12. We observe that the Appellant apart from averments made above, has not substantiated any ground to justify their claim of refund. It is relevant to note that the Commissioner (Appeals) has observed the following for rejection of refund: - "7. I observe that Show Cause N....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... ground that the adjudicating authority had committed an error in passing his order. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance 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"." 10. In view of the above, I find no reason to interfere with the impugned order rejecting the refund claim, Hence, the appeal is liable for rejection. 11. Appeal rejected." 13. Further, the Appellant have t....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....sidering the same, facts obtaining in the appeal are distinguishable and this ruling is not relevant for resolution of dispute in this case. 16. We also find that recently CESTAT New Delhi in the case of M/s. Kalyan Toll Infrastructure Ltd. Versus Commissioner Central Excise and CGST, Indore [2024 (5) TMI 369-CESTAT NEW DELHI] had an occasion to observe whether refund application can be made without challenge to the original assessment order. CESTAT New Delhi had held that refund proceedings are executionary proceedings and they cannot alter assessment proceedings including self- assessment. The relevant paragraphs from the ruling are reproduced below for ease of reference: - "17. The same question was before the High Court of D....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....titled 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." 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 c....