9911796707
TMI Blog2024 (5) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... was a central excise case. In both judgments, the Supreme Court held that refund can only be sanctioned in pursuance of the assessment not such as to have the effect of changing the assessment. After these judgments, there have been changes in the law and self-assessments were introduced. The question which arose is if there was only self-assessment and no re- assessment by the officer, if the refund could be sanctioned contrary to the self assessment. This was answered by a larger bench of Supreme Court in negative in ITC Ltd. vs Commissioner of Central Excise, Kolkata IV [ 2019 (9) TMI 802 - SUPREME COURT] . It has been held that all assessments, including self-assessments are appealable and unless the assessment is modified, no refund c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clearly, ITC Ltd. applies to service tax matters also. Since the appellant had self-assessed service tax without applying the notification and the assessment has not been modified, it cannot be modified now in the refund proceedings. As per the self-assessment, the appellant was not entitled to the refund. The impugned order is upheld - appeal dismissed. - DR. RACHNA GUPTA, MEMBER (JUDICIAL) AND MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri Arvind Singh Chawla, Advocate for the appellant Shri Rajeev Kapoor and Shri Harshvardhan, authorised representatives for the Respondent ORDER M/s. Kalyan Toll Infrastructure Ltd.[Appellant] filed this appeal to assail the Order in Appeal [Impugned order] dated 21.3.2018 passed by the Commissioner (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the refund application was filed under section 11B of the Excise Act as made applicable to service tax matters, the time limit under section 11B should not apply to its case. 8. Reliance is placed on the following decisions: a) Shri Balaji Warehouse Larger bench decision [(2023) 11 CENTAX 184 (Tri-Chandigarh)] in which it was held that self-assessment by an assessee under service tax cannot be equated with an order of assessment against which an appeal can be filed. b) Credible Engineering Construction Projects Ltd. vs Commissioner [2022(9) TMI 844-CESTAT Hyderabad] c) Commissioner of service tax vs M/s. Afflatus International [2023(5) TMI 975] Submissions on behalf of Revenue 9. Learned authorised representatives for the Revenue support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4(172) ELT 145 (SC)] which was a Customs case and Collector of Central Excise vs Flock (India) Pvt. Ltd. which was a central excise case. In both judgments, the Supreme Court held that refund can only be sanctioned in pursuance of the assessment not such as to have the effect of changing the assessment. 14. After these judgments, there have been changes in the law and self-assessments were introduced. The question which arose is if there was only self-assessment and no re- assessment by the officer, if the refund could be sanctioned contrary to the self assessment. This was answered by a larger bench of Supreme Court in negative in ITC Ltd. vs Commissioner of Central Excise, Kolkata IV [2019 (368) E.L.T. 216 (S.C.)]. It has been held that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 of India - 2009 (240) E.L.T. 490 (Bom.) though the High Court interfered to direct the entertainment of refund application of the duty paid under the mistake of law. However, it was observed that amendment to the original order of assessment is necessary as the relief for a refund of claim is not available as held by this Court in Priya Blue Industries Ltd. (supra). (emphasis supplied) 15. Thus, it was held that through refund proceedings, the assessment (including self-assessment) cannot be modified. Through ITC Ltd., a batch of matters were disposed of. The discussion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-assessed and the assertion of the petitioner of the services rendered by it qualifying as an export of service questioned or negatived in accordance with the procedure prescribed under the Act, its claim for refund could not have been negated. As was observed by the Supreme Court in ITC Limited, a self-assessed return also amounts to an assessment and unless it is varied or modified in accordance with the procedure prescribed under the relevant statute, the same cannot possibly be questioned in refund proceedings. As the Supreme Court had held in the decisions aforenoted, the authority while considering an application for grant of refund neither sits in appeal nor is it entitled to review an assessment deemed to have been made. In fact, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
