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TMI Blog2010 (2) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... rforming the sales activities. The appellant's accountant as a matter of routine practice paid the service tax and submitted the ST-3 returns for the period from October 06 to March, 08. The appellants filed refund claim, which was rejected by the Assistant Commissioner applying the ratio of decision of the Hon'ble Apex Court in the case of CCE, Kanpur Vs. Flock (India) Pvt. Ltd., 2000 (120) ELT 285 (SC). Aggrieved from the same the appellants filed an appeal before the Commissioner (Appeals), who also rejected their appeal. Aggrieved from the same, the appellants are before me. 2. The issue involved in this case is whether the appellants can file the refund claim without challenging the assessment in the facts and circumstances of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 (Tri-Mum) and CCE, Nagpur Vs. Noble Grain India Pvt. Ltd., 2009 (14) STR 617 (Tri-Mum). She further prayed that mere rejection of the claim of refund following the Flock (India) Ltd. is not sustainable and the impugned order is liable to be set aside. 4. On the other hand, the learned DR submitted that it is a case of self assessment and the same has been accepted by the department, hence without challenging the same, the refund claim cannot be entertained and the lower authorities have rightly followed the Flock (India) Ltd. decision and the impugned order is sustainable. 5. After hearing both sides, I find that the issue involved in this case is as to whether the appellants are entitled for filing the refund of Service Tax paid as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case where the appellants have paid Service Tax on their own and on finding that they are not liable to pay the Service Tax, they filed a refund claim. There was neither assessment made by the Central Excise officer, nor any decision taken by the Central Excise officer and nothing is available on record. Hence, the question of challenging the assessment does not arise at all. Further, the reliance placed by the learned Advocate are squarely applicable in this case and in the case of Nagpur Transwell Power Pvt. Ltd. Vs. Commissioner of Central Excise, Nagpur, 2009 (243) ELT 459 (Tri-Mum), while disposing of the stay application this Tribunal has clearly held that proposition that 'assessment' includes 'self assessment' is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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