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TMI Blog2008 (10) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 18.12.2000 to Rs. 3,36,980/-. 3. The learned Assistant Commissioner issued show cause notice to the assessee, calli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 nontaxable services, and by merely raising credit notes, does not authorise the assessee to claim refund. Thus, the prayer for refund was rejected. 5. The appeal against this order was filed, which was dismissed by the Commissioner, by adopt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the decision or order appealed against to the appellant. Admittedly, when no order capable of being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue, 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. The appeal is accordingly allowed. The orders of the Tribunal and the Commissioner are set aside and the matter is reman ..... X X X X Extracts X X X X X X X X Extracts X X X X
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