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2020 (3) TMI 316 - AT - Service TaxRefund of erroneously paid service tax - Mining services - With the introduction of separate services under the category of Mining Service w.e.f. 01.06.2007, the Respondent/assessee were of the view that their service would fall under the new category and the Service Tax paid by them was not statutorily require to be paid - HELD THAT - The issue is no more res integra in view of the decision of the Tribunal in the case of CCE, Hyderabad Vs Vijay Leasing Company 2010 (12) TMI 782 - CESTAT, BANGALORE where it was held that When the respondents came to know that the activity undertaken by them under these contracts would fall under the mining activity-which came into service tax net from 01/06/2007, the assessee was justified in filing the refund claim as the self-assessment cannot be considered as an assessment made by an officer under Section 73 against which an appeal or challenge lies. Appeal dismissed - decided against Revenue.
Issues involved:
Refund claim of Service Tax, categorization of service, justification of refund claim, self-assessment, Tribunal's decision applicability. Analysis: The case involved a refund claim of Service Tax amounting to ?78,66,351/- for the period from 01.04.2006 to 31.03.2007. The assessee claimed that with the introduction of separate services under 'Mining Service' from 01.06.2007, their service would fall under the new category, and the Service Tax paid was not required. The Adjudicating Authority rejected the refund claim, but the Learned Commissioner (Appeals) allowed the refund for the period before 01.06.2007. The Department appealed to the Tribunal. The Tribunal referred to the decision in CCE, Hyderabad Vs Vijay Leasing Company, 2010 SCC Online CESTAT 1488, stating that the self-assessment by the assessee justified the refund claim as it was not an assessment made by an officer under Section 73. The Tribunal emphasized that the self-assessment cannot be compared to an assessment under Section 73, against which an appeal lies. The Tribunal also highlighted a High Court decision supporting the assessee's right to claim a refund for wrongly paid Service Tax. The Tribunal clarified that under the scheme, the assessee is required to deposit Service Tax without provision for assessment, except where a notice is issued under Section 73. The Tribunal found the reasoning of the lower authorities to reject the refund claim unjustified. The Tribunal pointed out that the Commissioner's reasoning was inconsistent with a previous order in favor of the assessee, which was not appealed against. The Tribunal remanded the matter back to the Commissioner for fresh adjudication in line with the law and previous orders. The Tribunal concluded that the findings of the Commissioner (Appeals) were correct, legal, and did not warrant interference. The Tribunal upheld the decision allowing the refund claim, rejecting the Revenue's appeal. In conclusion, the Tribunal sustained the impugned order, citing the settled point in favor of the assessee based on previous judgments. The Tribunal found no grounds to interfere with the decision and rejected the Revenue's appeal, upholding the refund claim of the assessee.
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