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TMI Blog2018 (2) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Respondent ORDER Per : S. S. Garg The present appeal is directed against the impugned order dated 03.02.2017 passed by the Commissioner (Appeals) whereby he has allowed the appeal filed by the Department and set aside the Order-in-Original. Briefly the facts of the case are that the appellants are registered with the Department as service provider. They filed a refund application on 01.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised return and once the assessment is over no revised return was filed and therefore refund cannot be granted as the assessment becomes final and was not challenged in appeal. 2. Heard both the parties and perused the records. 3. Learned consultant for the appellant submitted that the impugned order is not sustainable in law as the same is contrary to the facts and the law and the binding judic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014 (33) S.T.R. 660 (Tri.) wherein it has been held that When the Revenue contends that the appellant/assessee should have challenged the assessment before filing refund claim, it is expecting the impossible since how can a person challenge his own assessment. Moreover, this leads to the question as to before whom assessment should be challenged. In this case, assessment is by the assessee and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1994 - Tribunal order rejecting refund on the ground of non-challenge to assessment order, not sustainable as no appealable order passed - Adjudication order for subsequent period holding services rendered as not chargeable to Service tax and such order not appealed against or shown as wrong - Matter remanded to Commissioner (Appeals) for passing orders afresh - Section 11B of Central Excise A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court which has been subsequently relied upon by the Division Bench of this Tribunal is squarely applicable in the facts and circumstances of this case and by following the ratios of the said judgment, I am of the considered opinion that the impugned order is not sustainable in law and therefore, the same is set aside by allowing the appeal of the appellant with consequential relief, if any. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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