9911796707
TMI Blog2019 (4) TMI 1699X X X X Extracts X X X X X X X X Extracts X X X X ..... transport of goods by road/goods transport agency service, Business Auxiliary Service, Consulting Engineer Service etc. The appellant filed a refund claim on 23.04.2015 for Rs. 3,24,290/- (Rupees Three Lakhs Twenty Four Thousand Two Hundred and Ninety only) in respect of excess service tax paid on GTA services during the month of May 2014. During the adjudication proceedings, the Deputy Commissioner has found that the total service tax payable on the gross value of Rs. 18,35,766/- (Rupees Eighteen Lakhs Thirty Five Thousand Seven Hundred and Sixty Six only) under reverse charge was Rs. 56,756/- (Rupees Fifty Six Thousand Seven Hundred and Fifty Six only) but the assessee had actually paid an amount of Rs. 3,81,046/- (Rupees Three Lakhs Eigh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal by relying upon the decision of the Hon'ble Apex Court in the case of Flock (India) Pvt. Ltd. reported in 2000 (120) E.L.T. 285 (S.C) and Priya Blue Industries Ltd. Vs. Commissioner reported in 2004 (172) E.L.T. 145 (S.C). He further submitted that the said decisions of the Apex Court are not applicable in the present case where there is a self assessment. He further submitted that the refund claim cannot be rejected on the sole basis that an appeal has not been filed against the self assessment. He also submitted that the ST-3 returns for April to September 2014 was filed by the appellant which in law deemed as self assessment and filing an appeal against the self assessment would not be tenable under law. He further submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue's appeal. In fact the decision in the case of Flock (India) Pvt. Ltd. and Priya Blue Industries Ltd. are not applicable in the facts and circumstances of this case and both the decisions have been distinguished by the Tribunal in the case of Premier Agencies and Gimatex Industries Pvt. Ltd. cited supra wherein identical facts were involved. It is pertinent to reproduce the relevant findings of the Tribunal in the above said case which is recorded in para 5 & 6. "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 f Tax paid as per their own assessment without challenging the same? The refund claim of the appellants are denied b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. v. Commissioner of Central Excise, Nagpur - 2009 (243) E.L.T. 459 (Tri.-Mum.), while disposing of the stay application this Tribunal has clearly held that proposition that "assessment" includes "self assessment" is not correct for purpose of appeal under Section 35F of the Central Excise Act, 1944. The appeal under Section 35 ibid is p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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