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TMI Blog2016 (12) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... his case, undisputedly the department has not issued a show cause notice quantifying the amount. A letter issued to the appellant cannot take the place of a show cause notice provided under law. The Ld. Counsel for appellant submitted that a second letter was issued to the appellant demanding interest after payment of amount under protest. However, for reasons not known, department has refrained from raising a demand/issuing a show cause notice - as the appellant has paid the Service Tax amount under protest, I hold that the appellant is eligible for refund. The impugned order rejecting the refund is set aside - appeal allowed - decided in favor of appellant-assessee. - ST/132/2007 - A/31092/2016 - Dated:- 24-10-2016 - Ms. Sulekha Beevi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant. She stressed on the point that the amount was paid by appellant under protest. It was also pointed out that the adjudicating authority had rejected the refund claim without issue of any show cause notice proposing to reject the refund. She relied upon the decision laid in M/s BPL Telecom Pvt.Ltd. Vs CCE Cochin [2006-TIOL-1682-CESTAT Bang.], M/s BST Ltd Vs CCE Cochin[ 2006-TIOl-1678-CESTAT.Bang. and M/s Sri Krishna Fertilisers Ltd Vs CCE, Patna[2007-(6)STR- 401(Tri. Kol) to canvas the proposition that GTO service was brought under Service Tax net retrospectively by the amendment to Finance Act, 2000 with effect from 12-05-2000 only. The Honb le Apex Court in the case of Laghu Udyog Bharati Vs UOI [2002-TIO- 162-SC-ST] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 998. The appellant has paid on receiving a letter issued by department. The appellant had paid the amount under protest and later coming to know that they are not liable to pay the amount as there was no show cause notice demanding /quantifying the tax to be paid, they filed a refund application. The Hon ble Apex Court in the case of Laghu Udyog Bharati (Supra)which was followed the by the Tribunal in the decisions cited by the Ld. Counsel for the appellant, observed that the demand can be confirmed only if a show cause notice is issued prior to the amendment brought out to the Finance Act making the service recipient liable to pay service tax. In this case, undisputedly the department has not issued a show cause notice quantifying th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has been confirmed by the Apex court. In the present case, the show cause notice has been issued after the amendment was brought to the Finance Act retrospectively. Therefore, it is the contention of the appellants that following ratio of the cited judgments, the demands are not sustainable. The learned counsel submits that in terms of the cited rulings including the ruling of this bench, the appeal is to be allowed along with the stay application. 6. In the case of M/s BST Ltd., Vs CCE, Cochin(supra) , the Tribunal had occasion to consider whether the confirmation of demand is sustainable, when show cause notice is issued after the amendment to the Finance Act. The Tribunal therein held that the confirmation of demand is not s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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