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TMI Blog2020 (3) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... essee that they had erroneously paid the Service Tax. With the introduction of separate services under the category of 'Mining Service' w.e.f. 01.06.2007, the Respondent/assessee were of the view that their service would fall under the new category and the Service Tax paid by them was not statutorily require to be paid. The Adjudicating Authority rejected the refund claim. On appeal, the Learned Commissioner (Appeals) allowed the refund of Service Tax paid for the period prior to 01.06.2007. The Department, being aggrieved by the order of Learned Commissioner (Appeals) has preferred the present appeal before the Tribunal. 3. Heard both the parties and perused the appeal records. 4. We find that the issue is no more res integra in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 007, on the following substantial question of law:- "Whether in the facts and circumstances the claim to refund of service tax which has been paid in excess wrongly could have been refused?" 2. The necessary facts are, that the assessee voluntarily deposited certain amounts with the department, purportedly representing service tax on different services, which were charged by the assessee from its sister concerns/clients, for the period September 1999 to May 2000. Realising that those services were not chargeable to service tax, the assessee issued credit notes with respect to the entire amounts to its concerns/clients, and lodged a claim for refund on 24-11-2000, for a sum of Rs. 3,40,040/-, which was subsequently revised on 18-122000 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the value of non-taxable services, and that mere production of statement showing value of unit-wise taxable services and services, which are non-taxable services cannot be considered authentic/genuine document, for the purpose of granting refund. It was also found, that nowhere the evidence produced by the assessee establish, that the service tax collected by them has not been virtually passed on to their clients/customers, and thus, it was observed, that incidence of burden has been passed on to the clients/customers, apart from the fact that assessee has collected tax without authority of law for non-taxable services, and by merely raising credit notes, does not authorise the assessee to claim refund. Thus, the prayer for refund was reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 73 onwards it is clear, that the assessee himself is to deposit service tax in form ST-3, there is no provision for assessment. Passing of assessment order is contemplated only in cases where the notice is issued under Section 73, and it is found, that service tax is not levied or paid, or has been short levied or short paid etc. In that view of the matter, the very basis/reasonings given by the learned Tribunal, simply have no legs to stand. Admittedly, the appeal under Section 85 lies against a specific order of the concerned authority in Form ST-4, which requires to disclose, designation and address of the officer passing the decision or order appealed against, and the date of decision or order, so also the date of communication o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been looked into. 11. In that view of the matter, the question as framed is required to be answered against the Revenue, and in favour of the assessee, but at the same time, the relief which we are inclined to grant is, only to the effect, that while setting aside the orders Annex. 2 and 3, we remit the matter back to the Commissioner (Appeals-II), Central Excise and Customs, Jaipur, to restore the appeal to its original number, and adjudicate the claim of the assessee afresh, in accordance with law, keeping in view the observations made above, and also keeping in view the order passed by the said Commissioner dated 30-9-2005, in the case of the assessee itself. The Commissioner is also directed to decide the appeal expeditiously. 12. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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