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TMI Blog2023 (11) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... a preliminary view or opinion that may have been formed by the second respondent for rejecting the applications for refund - the deficiency memos did not fulfil the rudimentary requirements of an action being imbued and informed by the principles of natural justice. In any event, the deficiency memo cannot be viewed as a substitute for a SCN - the observations rendered by the Gujarat High Court in New Pensla Industries v. Union of India [ 2017 (5) TMI 130 - GUJARAT HIGH COURT] agreed upon, which correctly held that a deficiency memo is not in the nature of a SCN and that it merely serves the purpose of placing a party on notice of being liable to furnish additional information and remedy any deficiency in a claim that may be laid. Examination of refund claim - HELD THAT:- It becomes pertinent to note that both the Customs as well as the Excise Acts follow an identical procedure of self-assessment. While Section 17 of the Customs Act enables an importer or an exporter, as the case may be, to self-assess and pay the duty leviable on goods, the said provision further empowers the proper officer to verify the self-assessed return that may be submitted. In terms of Section 17(4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 18 June 2012 had been complied with. The respondents, at this stage of the proceedings, could not have doubted, questioned or undertaken a merit review of the self-assessed return which had been submitted. The impugned order dated 04 October 2021 is hereby quashed and set aside - petition allowed. - HON'BLE MR. JUSTICE YASHWANT VARMA AND HON BLE MR. JUSTICE DHARMESH SHARMA For the Petitioner Through: Mr. Tarun Gulati, Sr. Adv. with Mr. Arjyadeep Roy, Adv. For the Respondents Through: Mr. Ravi Prakash, CGSC with Mr. Yasharth Shukla, Adv. for R-1 Mr. Ashok Kumar Arya and Mr. Aman Rewaria, Advs. For R-2 JUDGMENT YASHWANT VARMA, J. A. INTRODUCTION 1. The petitioner impugns the order dated 04 October 2021 passed by the second respondent and in terms of which its applications for refund of unutilized CENVAT credit have come to be negatived. The refund claims were lodged in respect of the quarters pertaining to October 2014 to December 2014, January 2015 to March 2015 and April 2015 to June 2015. These applications which were dated 29 September 2015, 23 December 2015 and 29 March 2016 respectively were made on the ground of the input ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces had been exported out of the country. 6. Proceeding then to consider the Business Support Service component of the activities undertaken by the petitioner, the second respondent notes that while the petitioner had entered into an agreement with its parent company, the service itself was provided to international customers of the parent company or its group entities and that such customers were possibly present in India. It also took into consideration the fact that payment terms, as settled in favour of the petitioner, appeared to indicate that it was being paid on a commission and a cost-plus markup basis and that no invoices appear to have been raised upon the international customers. The second respondent in this respect held that the petitioner had in any case failed to place any invoices on record. It was on an overall consideration of the aforesaid aspects that the second respondent came to ultimately conclude that the service recipient was located in India and consequently the services rendered by the Petitioner would not qualify as an export of service . 7. The second respondent went on to hold that the services rendered by the petitioner would in fact fall and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Section 73(1) is concerned, the same can be invoked within a period of five years from the relevant date. 12. Sections 72 and 73 of the Act are extracted hereinbelow: - 72. Best judgment assessment. If any person, liable to pay service tax (a) fails to furnish the return under Section 70; (b) having made a return, fails to assess the tax in accordance with the provisions of this chapter or rules made thereunder, the Central Excise Officer, may require the person to produce such accounts, documents or other evidence as he may deem necessary and after taking into account all the relevant material which is available or which he has gathered, shall by an order in writing, after giving the person an opportunity of being heard, make the assessment of the value of taxable service to the best of his judgment and determine the sum payable by the assessee or refundable to the assessee on the basis of such assessment. xxxx xxxx xxxx 73. Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded. ( 1) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne the amount of service tax due from, or erroneously refunded to, such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (2-A) Where any appellate authority or tribunal or court concludes that the notice issued under the proviso to sub-section (1) is not sustainable for the reason that the charge of, (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or the rules made thereunder with intent to evade payment of service tax, has not been established against the person chargeable with the service tax, to whom the notice was issued, the Central Excise Officer shall determine the service tax payable by such person for the period of thirty months, as if the notice was issued for the offences for which limitation of thirty months applies under subsection (1). (3) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to sub-section (4-A). (5) The provisions of sub-section (3) shall not apply to any case where the service tax had become payable or ought to have been paid before the 14th day of May, 2003. (6) For the purposes of this section, relevant date means, (i) in the case of taxable service in respect of which service tax has not been levied or paid or has been short-levied or short-paid (a) where under the rules made under this chapter, a periodical return, showing particulars of service tax paid during the period to which the said return relates, is to be filed by an assessee, the date on which such return is so filed; (b) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (c) in any other case, the date on which the service tax is to be paid under this chapter or the rules made thereunder; (ii) in a case where the service tax is provisionally assessed under this chapter or the rules made thereunder, the date of adjustment of the service tax after the final assessment thereof; (iii) in a case where any sum, relating to service tax, has erroneously been refunded, the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t April, 2012: Provided that the refund may be claimed under this rule, as existing, prior to the commencement of the CENVAT Credit (Third Amendment) Rules, 2012, within a period of one year from such commencement: Provided further that no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Excise Duties and Service Tax Drawback Rules, 1995, or claims rebate of duty under the Central Excise Rules, 2002, in respect of such duty; or claims rebate of service tax under the Service Tax Rules, 1994 in respect of such tax. Explanation 1.- For the purposes of this rule,- (1) export service means a service which is provided as per rule 6A of the Service Tax Rules 1994; (1A) export goods means any goods which are to be taken out of India to a place outside India. (2) relevant period means the period for which the claim is filed. Explanation 2.-For the purposes of this rule, the value of services shall be determined in the same manner as the value for the purposes of sub-rule (3) and (3A) of rule 6 is determined. 14. Since the respondents had in the course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Central Excise or Deputy Principal Commissioner of Central Excise or Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to (a) 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 India; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the Principal Commissioner of Central Excise or Commissioner of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the duty of excise and interest, if any paid on such duty paid by 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or, as the case may be, by the court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section. C. SUBMISSSIONS OF BT INDIA 15. Assailing the impugned order, Mr. Gulati, learned senior counsel appearing for the petitioner, submitted that since the second respondent had neither contested the return as submitted by the petitioner in exercise of powers conferred by Section 72 of the Act nor was the petitioner ever placed on notice in accordance with Section 73 of the Act, it was impermissible for the respondents to have denied the claim for refund by seeking to question the self-assessed returns as submitted by the petitioner. According to Mr Gulati, in the absence of a power of best judgment assessment being invoked or the respondents having resorted to Section 73 of the Act, the claim for refund as submitted could not have been rejected. 16. Mr. Gulati submitted that there can be no dispute with respect to the fact that an assessment as contemplated in taxing statutes would also include a self-assessment. This, according to learned counsel, is a proposition which is no longer res integra and stands authoritatively settled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed by the Assessing Officer. This Court considered the provisions of Sections 47 and 17 of the Customs Act and has observed : 9. Reading Sections 47 and 17 together, it is clear beyond any doubt, that as soon as the bill of entry is filed, the proper officer examines the goods, tests them, assesses the proper duty and permits clearance of goods only after the duty and other charges, if any, are paid. In the scheme of the Act, there is no room for contending that any goods will be allowed to be cleared without assessment of the duty, whether provisional or final, as the case may be. 10. Now it may be noticed that the Act does not prescribe any particular form in which the order of assessment is to be made. In the very nature of things, no formal order of assessment can be expected when there is no dispute as to the classification or the rate of duty. No formal order can be expected in such a case, it is more like across-the-counter affair. In the present case, it may be reiterated that the appellant himself classified the goods under Tariff Item No. 73.33/40 and paid the duty at the rate applicable thereunder. At that stage, he did not raise any dispute either as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bill of entry on the basis of which self-assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or reassessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, reassessment is not permitted nor conditions of exemption can be adjudicated. Reassessment is permitted only under Sections 17(3), (4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or reassessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim for refund on the ground that the adjudicating authority had committed an error in passing its order. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant. This position, in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise duty. Such a position cannot be countenanced. The view taken by us also gains support from the provision in sub-rule (3) of Rule 11 wherein it is laid down that where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf. The provision indicates the importance attached to an order of the appellate or revisional authority under the Act. Therefore, if an order which is appealable under the Act is not challenged then the order is not liable to be questioned and the matter is not to be reopened in a proceeding for refund which, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings are neither in the nature of assessment nor re-assessment and thus the second respondent stood denuded of any jurisdiction to question or review the claim for refund as sought by the petitioner. According to learned senior counsel, a self-assessment can be reopened or modified only by either taking recourse to appropriate appellate proceedings in cases where an order may have been passed or insofar as the present case is concerned, in accordance with the provisions contained in Sections 72 and 73 of the Act. 22. Mr. Gulati then took serious objection to the impugned order arguing that the same was rendered in clear violation of the principles of natural justice. According to Mr. Gulati, the so-called deficiency memos dated 05 November 2019, 13 May 2020, 19 May 2020 and 01 June 2020 never placed the petitioner on notice of the view which the second respondent was proposing to take and which has ultimately been adopted by it while rejecting its applications for refund. Mr. Gulati pointed out that a reading of the aforesaid communications would indicate that they were more in the nature of interrogatories rather than a notice calling upon the petitioner to show cause w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point out discrepancy/deficiency in FORM GST RFD-03 or acknowledge the refund application in FORM GST RFD-02. In the event deficiencies are noted and communicated to the applicant, then the applicant would have to file a fresh refund application after rectifying the deficiencies .. xxxx xxxx xxxx 8. Admittedly, till date the petitioner's refund application dated 4th November, 2019 has not been processed. As neither any acknowledgment in FORM GST RFD-02 has been issued nor any deficiency memo has been issued in RFD-03 within timeline of fifteen days, the refund application would be presumed to be complete in all respects in accordance with sub-rule (2), (3) and (4) of Rule 89 of CGST/DGST Rules. 9. To allow the respondent to issue a deficiency memo today would amount to enabling the Respondent to process the refund application beyond the statutory timelines as provided under Rule 90 of the CGST Rules, referred above. This could then also be construed as rejection of the petitioner's initial application for refund as the petitioner would thereafter have to file a fresh refund application after rectifying the alleged deficiencies. This would not only delay th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detailing out the alleged breaches and defaults he has committed, so that he gets an opportunity to rebut the same. Another requirement, according to us, is the nature of action which is proposed to be taken for such a breach. That should also be stated so that the noticee is able to point out that proposed action is not warranted in the given case, even if the defaults/breaches complained of are not satisfactorily explained. When it comes to blacklisting, this requirement becomes all the more imperative, having regard to the fact that it is harshest possible action. 22. The High Court has simply stated that the purpose of show-cause notice is primarily to enable the noticee to meet the grounds on which the action is proposed against him. No doubt, the High Court is justified to this extent. However, it is equally important to mention as to what would be the consequence if the noticee does not satisfactorily meet the grounds on which an action is proposed. To put it otherwise, we are of the opinion that in order to fulfil the requirements of principles of natural justice, a show-cause notice should meet the following two requirements viz: (i) The material/grounds to be state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of his stand. A Full Bench of the Madras High Court considered this question in T.M.M. Sankaralinga Nadar Bros. v. CIT [4 ITC 226 (Mad) (FB)]. After dealing with the contention the Full Bench expressed the following opinion: The principle to be deduced from these two cases is that where the question relating to assessment does not vary with the income every year but depends on the nature of the property or any other question on which the rights of the parties to be taxed are based, e.g., whether a certain property is trust property or not, it has nothing to do with the fluctuations in the income; such questions if decided by a Court on a reference made to it would be res judicata in that the same question cannot be subsequently agitated. xxxx xxxx xxxx 16. We are aware of the fact that strictly speaking res judicata does not apply to income tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challengi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice recipient). This essential difference has been lost sight of by the Department. In the present case there is no privity of contract between Verizon India and the customers of Verizon US. Such customers may be the users of the services provided by Verizon India but are not its recipients. xxxx xxxx xxxx 53. The Department was also not justified in characterising the arrangement of provision of services as one between related persons viz., Verizon India and Verizon US. In doing so the Department was applying a criteria that was not stipulated either under the ESR or Rule 6A of the ST Rules. Summary of conclusions 54. To summarise the conclusions: xxxx xxxx xxxx (iii) That Verizon India may have utilised the services of Indian telecom service providers in order to fulfil its obligations under the Master Supply Agreement with Verizon US made no difference to the fact that the recipient of service was Verizon US and the place of provision of service was outside India. (iv) The subscribers to the services of Verizon US may be users of the services provided by Verizon India but under the Master Supply Agreement it was Verizon US that was the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. 35. Similarly, according to learned counsel, Rule 5 of the CCR Rules speaks of determination of the amount that is liable to be refunded. It was further submitted that Rule 5 makes the grant of refund subject to the procedure, safeguards, conditions and limitations as may be specified by the Central Board of Excise and Customs in terms of a notified order. 36. Learned counsel in this connection drew our attention to the notification so issued in terms of the aforesaid statutory provision dated 18 June 2012. Our attention was specifically drawn to Clauses 2 and 3 of the said notification and which are extracted hereinbelow: - ....2. Safeguards, conditions and limitations. - Refund of CENVAT Credit under rule 5 of the said rules, shall be subjected to the following safeguards, conditions and limitations, namely:- (a) the manufacturer or provider of output service shall submit not more than one claim of refund under this rule for every quarter: Provided that a person exporting goods and service simultaneously, may submit two refund claims one in respect of goods exported and other in respect of the export of services every quarter. (b) in this noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cified in section 11B of the Central Excise Act, 1944 (1 of 1944). (c) The application for the refund should be signed by- (i) the individual or the proprietor in the case of proprietary firm or karta in case of Hindu Undivided Family as the case may be; (ii) any partner in case of a partnership firm; (iii) a person authorized by the Board of Directors in case of a limited company; (iv) in other cases, a person authorized to sign the refund application by the entity. (d) The applicant shall file the refund claim along with the copies of bank realization certificate in respect of the services exported. (e) The refund claim shall be accompanied by a certificate in Annexure A-I, duly signed by the auditor (statutory or any other) certifying the correctness of refund claimed in respect of export of services. (f) The Assistant Commissioner or Deputy Commissioner to whom the application for refund is made may call for any document in case he has reason to believe that information provided in the refund claim is incorrect or insufficient and further enquiry needs to be caused before the sanction of refund claim. (g) At the time of sanctioning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the services rendered by the petitioner did not qualify as export of services coupled with the ultimate conclusion which came to be recorded by the said respondent, who on a due consideration of facts found that the petitioner was liable to be viewed as an intermediary in terms of the provisions contained in Rule 2(f) read with Rule 9 of the PoPS Rules. On an overall consideration of the above, the respondents would urge us to dismiss the writ petition. E. THE NATURAL JUSTICE CHALLENGE 42. Having noticed the rival submissions which were addressed, we first take up for consideration the challenge laid to the impugned order on the ground of violation of the principles of natural justice. The respondents have in this regard essentially referred to the deficiency notices dated 05 November 2019 and the three follow up communications dated 13 19 May 2020 and 01 June 2020. It was their contention that the aforenoted deficiency notices are liable to be read as evidence of sufficient and broad compliance with the natural justice requirements. We find ourselves unable to sustain that contention for the following reasons. 43. As we view the deficiency memos which had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not embody a preliminary view or opinion that may have been formed by the second respondent for rejecting the applications for refund. We are thus of the firm opinion that the deficiency memos did not fulfil the rudimentary requirements of an action being imbued and informed by the principles of natural justice. 47. It becomes pertinent to note in this regard further and as was rightly contended by Mr. Gulati, that a deficiency memo does not serve the same purpose as a SCN. A communication of the former genre is essentially aimed at requiring the noticee to place additional material and evidence for the consideration of the competent authority. This would also flow from the requirements put in place in terms of Rule 5 of the CCR Rules read along with the Notification dated 18 June 2012. It becomes pertinent to note that the aforesaid Notification specifies the various particulars, details and documentation which must accompany and form part of a refund claim. A deficiency memo would thus be confined to the applicant assessee being called upon to fulfil any shortcoming or supplement documentation that must accompany a claim for refund. In any event, the deficiency memo cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... little relevance insofar as the question which stands posited before us is concerned. This, we do hold, since we find that the determination which is spoken of in Rule 5(1) is confined to a quantification of the refund allowable in accordance with the formula prescribed therein. We thus find ourselves unable to sustain the submission of the respondent that the word determined must be read in aid of recognizing a power of assessment being available to be exercised while considering a claim for refund. 54. However, and undisputedly Rule 5(1) of the CCR Rules also enables the Board to specify the safeguards, conditions and limitations subject to which a refund of CENVAT credit may be allowed. Undisputedly, the notification dated 18 June 2012 owes its genesis to this power which stands placed in the hands of the Board. The said notification in Clause 3(g) obliges the Assistant of the Deputy Commissioner to examine and verify the correctness of the refund claim and to ensure that goods cleared for export or services provided have actually been exported. It is the aforesaid safeguard and condition as contained in that Notification which the respondents would urge us to recognise as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne by the importer or exporter [* * *] and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. Explanation . For the removal of doubts, it is hereby declared that in cases where an importer has entered any imported goods under Section 46 or an exporter has entered any export goods under Section 50 before the date on which the Finance Bill, 2011 receives the assent of the President, such imported goods or export goods shall continue to be governed by the provisions of Section 17 as it stood immediately before the date on which such assent is received. xxxx xxxx xxxx 27. Claim for refund of duty. (1) Any person claiming refund of any duty or interest, (a) paid by him; or (b) borne by him, may make an application in such form and manner as may be prescribed for such refund to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund: Provided that the amount of duty and interest, if any, paid on such duty as determined by the Assistant Commissioner of Customs under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to (a) the duty and interest, if any, paid on such duty paid by the importer or the exporter, as the case may be if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (b) the duty and interest, if any, paid on such duty on imports made by an individual for his personal use; (c) the duty 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; (d) the export duty as specified is Section 26; (e) drawback of duty payable under Sections 74 and 75; (f) the duty 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 O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble on goods, the said provision further empowers the proper officer to verify the self-assessed return that may be submitted. In terms of Section 17(4) of the said enactment, if the proper officer on verification, examination or testing of the goods comes to the conclusion that the self assessment is incorrect, it becomes entitled to reassess the duty leviable on goods. It is in extension of the aforesaid power that sub-section (5) of Section 17 speaks of reassessment and the obligation of the proper officer to pass a speaking order in support of the exercise of reassessment. 58. Section 27 enables a person to claim refund of duty or interest which may have been either paid or borne by it. Section 27(2) of the Customs Act, in terms identical to Section 11B (2) of the Excise Act, speaks of refunds being effected upon the proper officer being satisfied that the whole or any part of the duty paid is refundable. Section 27(2) is thus a provision which is pari materia with Section 11B (2) of the Excise Act. 59. The Supreme Court in ITC Limited, notwithstanding Section 27(2) employing the expression satisfied held that unless a self-assessed return is revised or doubted in ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically noticed and reaffirmed by three learned Judges of the Supreme Court in ITC Limited. The decision of the Supreme Court in ITC Limited assumes added significance, insofar as the present case is concerned, in light of it having found that a self-assessment return, even in the absence of a formal order dealing with the same, would nonetheless amount to an assessment. We had in this regard and in the preceding parts of this decision noticed the definition of the expression assessment as contained in Rule 2(b) of the 1994 Rules which includes a self-assessment of service tax and thus being evidence of a position similar and akin to that which obtains under the Customs and Excise Acts. 63. Their Lordships in ITC Limited categorically held that notwithstanding a self-assessed Bill of Entry having been merely endorsed by the competent authority, the same would nonetheless amount to an assessment . It was in that backdrop that it was held that once a self-assessed return had been duly accepted, the same could not be modified or varied by an authority while considering an application for refund. 64. It becomes pertinent to note that the appellant before the Supreme Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court in ITC Limited had described refund proceedings to be akin to execution proceedings. 67. We thus come to the firm conclusion that in the absence of the self-assessed return having been questioned, reviewed or re-assessed, the claim for refund of CENVAT credit could not have been denied by the respondents. When confronted with the application for refund, all that the respondents could have possibly examined or evaluated was whether the provisions of Rule 5 read along with the various prescriptions contained in the notification dated 18 June 2012 had been complied with. The respondents, at this stage of the proceedings, could not have doubted, questioned or undertaken a merit review of the self-assessed return which had been submitted. 68. The reliance which is placed on Clause 3(g) of the Notification dated 18 June 2012 also would not justify the denial of refund, since the expressions determine and satisfy as appearing in the parent Rule as also the Notification noted hereinabove would have to be construed bearing in mind the limited jurisdiction and authority which was available in the hands of the Adjudicating Authority and exercised by it while conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices that the petitioner undertook across different block assessment periods. 72. In this regard, it would be pertinent to recall that the Supreme Court in M/s Radhasoami Satsang had held that while each assessment year may constitute a unit in itself, unless a fundamental aspect common to different assessment years has come to be altered , the taxing authorities would be bound by the view already taken and it would in any case be impermissible for them to take contrarian views with respect to an identical set of facts. 73. As noticed hereinabove, the respondents while passing the impugned order have not alluded to any material change which may have justified a different or contrary view being taken. We thus find ourselves unable to sustain the impugned order on this additional ground. H. THE ALTERNATIVE REMEDY OBJECTION 74. Insofar as the argument of the respondent based on an alternative remedy is concerned, the same is noticed only to be rejected since we have already found that the action which had been initiated was in gross violation of the principles of natural justice. Undisputedly, a violation of the principles of natural justice constitutes an exception t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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