2009 (1) TMI 158 - AT - Service Tax

Refund sanctioned by the lower authorities has been objected by Revenue on the ground that self-assessment made by the assessee was not appealed against and without a favourable order out of such appeal no refund can be entertained - assessee himself is to deposit service tax in form ST-3 there is no provision for assessment - Admittedly when no order capable of being appealed against had ever been passed it cannot be said that the assessee could file appeal against the assessment order and not having so filed appeal he cannot lay the claim of refund revenue appeal rejected

Summary

Issues:
Sanction of refund without appealing self-assessment, challenge to refund claim, maintainability of refund claim without appealing assessment order.

Analysis:
1. Sanction of refund without appealing self-assessment:
The issue in this case revolves around the objection raised by the Revenue against the sanction of a refund of Rs. 2,29,010 by the lower authorities. The Revenue contended that without a favorable order resulting from an appeal against the self-assessment made by the assessee, no refund could be entertained. The Revenue cited judgments in the cases of CCE v. Flock India Pvt. Ltd. and Priya Blue Industries v. CC (Prev.) to support their stance.

2. Challenge to refund claim:
The brief facts of the case reveal that the assessee self-assessed the amount of Service tax payable as per Section 70 of the Finance Act, 1994, and paid the Service tax accordingly. The Revenue argued that since the assessment of Service tax returns was not challenged by the assessee and no appeal was filed against the final assessment of ST-3 Return, the sanction of the refund claim was not legal and proper. The Revenue emphasized the mandatory nature of challenging the final assessment order through an appeal as per Section 85 of the Finance Act, 1994.

3. Maintainability of refund claim without appealing assessment order:
The Tribunal referred to a previous case where a refund claim was rejected as the assessment order was challenged without filing a statutory appeal against it. However, the Hon'ble Rajasthan High Court, in a subsequent judgment, overruled the Tribunal's decision. The High Court emphasized that under the scheme of the law, the assessee is required to deposit service tax without the need for an assessment unless a notice is issued under Section 73. The High Court clarified that if no order capable of being appealed against had been passed, the assessee could not file an appeal against the assessment order and, therefore, could not claim a refund based on non-appeal. The judgment of the High Court was deemed applicable to the present case, leading to the upholding of the impugned order passed by the Commissioner (Appeals) and the rejection of the appeal filed by the Revenue.

In conclusion, the judgment emphasizes the importance of following the statutory appeal process before claiming a refund based on the assessment order. The decision highlights the legal framework regarding the appeal process in tax matters and sets a precedent for the maintainability of refund claims in such scenarios.