TaxTMI 
TaxTMI 
2025 (8) TMI 1223
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....ent ORDER DR. RACHNA GUPTA Present order disposes off two cross appeals filed by both the parties to this litigation against the Order-in-Appeal bearing no. 88/2019 dated 08.03.2019. The facts which culminated into the said order are as follows : 1.1 M/s Ramky Infrastructure Ltd. are registered with the Department under the category of 'Transport of Goods by Road' and 'Works Contract Service'. Appellants-respondent were engaged in the business of infrastructure projects. They were awarded project / work from office of the Additional Chief Engineer of different region of Public Health Engineering Department, Jaipur for execution of work related to distribution of water supply pipelines and/ or pumping station etc. The appellant-r....
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....as filed the present appeal. 2. We have heard Shri Venugopal, learned Advocate for the appellant-respondent and Shri Aejaz Ahmad, learned Authorized Representative for the department. 3. Learned counsel for the appellant-respondent has submitted that this is second round of litigation. Initially this Tribunal vide Final Order No. 54707/2016 dated 23.09.2016 had remanded the matter back to the original adjudicating authority. However the authorities below have failed to act upon the directions of the said final order. Learned counsel further submitted that during the material period, the appellant-respondent was a successful bidder for the tender issued by the State Government of Rajasthan, Public Health Engineering Department for layi....
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....2018 (12) GSTL 32 (Tri-Del), based on the decision of the Larger Bench in the case of Lanco Infratech Ltd. Vs. CC, CE & ST, Hyderabad 2015 (38) STR 709 (Tri.-LB). The appellant-respondent is rightly held entitled for sanction of refund claim. With these submissions, learned counsel for the appellant-respondent has prayed for the appeal filed by the appellant-respondent to be allowed holding appellant-respondent entitled to get the disbursement of the sanctioned amount of refund. The appeal filed by the department is prayed to be dismissed. 4. While rebutting these submissions learned Departmental Representative has submitted that the appellant-respondent has rendered a taxable service, self-assessed service tax, paid it, and filed ST-3 r....
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....m payable by the assessee or refundable to the assessee on the basis of such assessment. 4.2 The appellant-respondent has filed the refund application without appealing against its own self-assessment. While considering an application for refund, the assessment cannot be reopened or modified. As the assessment has not been modified, it cannot be modified now in the refund proceedings as per the ratio laid down by the Larger Bench of the Supreme Court in ITC Ltd. versus Commissioner of Central Excise, Kolkata IV 2019 (368) E.L.T. 216 (S.C.). Earlier, Hon'ble Supreme Court in Collector of Central Excise Versus Flock India 2000 (120) E.L.T. 285 (S.C.) held that refunds can be claimed if they flow from the assessment and not so as to mod....
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....nd all the issues are kept open for the adjudicating authority to decide de novo. 5.2 Consequent to said directions Order-in-Original No. 37/2017- 18 dated 05.12.2017 was passed. In the appeal against the said Order-in-Original dated 05.12.2017, Commissioner (Appeals) has held as follows: "9. Thus the decision of the Hon'ble CESTAT is applicable for period 2008-09 as existed in the present case. Further it is seen that the appellant has filed the refund claim within the period of one year as prescribed under Section 11B of the Central Excise Act, 1944, therefore, the questions of payment of service tax under provisional assessment or filing of refund claim on the basis Tribunal decision given in respect of another cases is irrel....
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.... refund has been sanctioned, however disbursement has been denied for want for unjust enrichment. Though department has relied upon the decision of Hon'ble Supreme Court in the case of ITC Ltd. Vs. Commissioner of Central Excise, Kolkata-IV reported as 2019 (368) ELT 216 (SC) and also in the case of Sahkari Khand Udyog Mandal Ltd. reported as 2005 (181) ELT 328. But in the light of earlier decision in assessee's own case and facts of present show cause notice being identical, we hold that the decisions relied upon by learned Departmental Representative are not applicable in the present matter as the appellant-respondent is held entitled for refund. 5.5 Also we do not find any reason to differ from the findings that the appellant-responde....