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TMI Blog2017 (3) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. Thereafter, on 11th April 2004, an application for refund of this amount as tax not due to be levied was filed with Service Tax cell of Nagpur Commissionerate. 2. The original authority issued notice dated 23rd June 2014, proposing to reject the refund claim on the ground of correctness of the in terms of the definition service in section 65B(44) of Finance Act, 1994, viz. '65B. Interpretations In this Chapter, unless the context otherwise requires, Xxxx (44) "service" means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include - (a) an activity which constitutes merely, - (i) a transfer of title in goods or immovable property, by way of sale, gift or in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jalandhar v. Bhawani Shankar Castings Pvt. Ltd [2008 (10) STR 213 (Tri-Del)]. 4. Learned Counsel for appellant sought adjournment owing to personal reasons; however, considering the peculiar nature of the dispute that will be detailed presently it was felt the matter may be proceeded with even in the absence of Learned Counsel. Learned Authorized Representative made submissions that were in conformity with the findings of the lower authority. 5. It is common ground that appellant had paid tax for the period from July 2012 and that refund claim had been filed subsequently as appellant was, based on the decision of the Tribunal supra, in no doubt that tax was not leviable. It is also not in dispute that the challenge before the Tribunal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 11B of Central Excise Act, 1944 as made applicable to Finance Act, 1944. Just as a claim for refund on ground of non-taxability should be accompanied by a decision in appeal upholding that contention, a rejection of claim that tax not due was paid incorrectly would have to be backed by an order of assessment. 9. Doubtlessly, in the era of self-assessment, the payment of tax by an assessee suffices to constitute collection of tax, as assessed, without the need for a separate assessment order or demand. Nevertheless, the prescription in section 75 is clear that delayed payment of tax must needs be accompanied by interest at the appropriate rates. And issue of notice under section 73 of Finance Act, 1994 is foreclosed only when, in acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by him and the incidence of such duty and interest, if any, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manufacturer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (e) the duty of excise and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (f) the duty of excise and interest, if any, paid on such duty borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify : xxxxxx Explanation. - For the purposes of this section, - (A) "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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