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TMI Blog2023 (9) TMI 1478X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in appeal whereas as per Hon ble Member (Judicial) Smt. Binu Tamta, the refund of service tax is not maintainable without challenging the assessment or self assessment in appeal and the judgement of the Hon ble Apex Court in the case of ITC Limited is applicable to self assessment made under Finance Act, 1994. In view of the majority opinion, it is held that That the refund of service tax is maintainable in the absence of any challenge to assessment or self assessment in appeal under the Finance Act, 1994. The appeals may now be listed for hearing before the Division Bench. - HON BLE SH. S.S. GARG, MEMBER (JUDICIAL); HON BLE MS. BINU TAMTA, MEMBER (JUDICIAL) AND HON BLE SH. P. ANJANI KUMAR, MEMBER (TECHNICAL) Sh. Gajendra Maheshwari and Sh. Priyamwada Sinha, Advocates for the appellant in Appeal No. 60064/2020 Sh. Rahesh Mehta, Chartered Accountant for the appellant in Appeal Nos. ST/60998, 60999 and 61000 of 2018 Ms. Krati Singh, Advocate for intervention application Ms. Swati Chopra, Sh. Nikhil Kumar Singh, Sh. Aneesh Deewan and Sh. Narinder Singh, Authorised Representatives for the respondent ORDER Per:S.S.Garg The present appeals are listed before the Larger Bench on being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g question:- Whether refund claim of service tax is maintainable in absence of any challenge to assessment or self-assessment in appeal or not? 7. Heard both the parties and perused the material on record. 8. Sh. Gajendra Maheshwari, learned Counsel for the appellant appearing in M/s Viavi Solutions India Pvt. Ltd. has submitted that they had filed the refund claim for the service tax paid by them erroneously on export of services. The said refund claim was rejected by the Commissioner (Appeals) vide order No. 153/ST/CGST-APPEALGURUGRAM/SG/2019 dated 31.10.2019. Aggrieved by the said rejection, the appellant filed appeal before the Tribunal and during the course of hearing, the respondent placed reliance on the Hon ble Apex Court decision in the case of ITC Limited cited (supra) to contend that the refund claim filed by the appellant was not maintainable since the appellant had not challenged the service tax returns submitted on self assessment basis. 9. Ld. Counsel has taken us through the judgement of the Hon ble Apex Court in the case of ITC Limited (supra) and submits that the Hon ble Supreme Court judgement in the case of ITC Limited (supra) was based on the provisions of Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce Act, 1994) with intend to provide legal backing for self assessment by the importer or exporter. In support of his submission, he cited the TRU Letter dated 28.02.2011 to show the justification behind such amendment. 13. He further submits that in the case of ITC Limited (supra) the Hon ble Apex Court interpreted the provisions of Customs Act, namely, Section 2(2), 17, 27, 128 of the Customs Act and has not considered the provisions related to the return, assessment and appeal under Service Tax Law (i.e. Finance Act, 1994). 14. He also submits that the ratio of the Hon ble Supreme Court in ITC Limited judgement holds good under the Customs Act and its ratio and interpretation cannot be stretched to service tax law as the scheme of service tax law with respect to assessment and appeal procedure is entirely different from that under the Customs law. 15. Thereafter, the Ld. Counsel proceeded to refer the provisions of service tax law and submits that Section 70 provides for furnishing of self assessment return (i.e. Form-ST-3) by a tax payer. However, unlike customs law (Section 17 of the Customs Act) there is no provision under the service tax law which provides for verification/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a contradictory stand by opposing M/s Cadila Healthcare cited (supra) with respect to the issue of maintainability in the present appeal. Further, the question of law framed by the Hon ble Gujarat High Court is only with respect to merits of the refund claims and not on the issue of maintainability (i.e. disputed issue). The respondent by choosing not to dispute the maintainability in the appeal before the Hon ble High Court has accepted the order of M/s Cadila Healthcare cited (supra) with respect to the same. It is his further submission that the respondent has chosen to take contradictory stand with respect to the order of M/s Cadila Healthcare cited (supra) upon the disputed issue before the Hon ble High Court of Gujarat and before this Larger Bench. 18. The Hon ble Supreme Court and the several High Courts have held that if an issue that is accepted by the Revenue for one assessee cannot raise against another assessee, since the revenue is not allowed to pick and choose. For this submission, He relied upon the following decisions:- Union of India and Others v. Kaumudini Narayan Dalal and Another, (2001) 10 Supreme Court Cases 231 Collector of Central Excise, Pune v. Tata Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm and in such manner as may be prescribed. 22. Further, Section 71 of the Finance Act (post 2001) provided for verification of tax assessed by the assessee which was also omitted w.e.f. 10.09.2004. She then refers to Rule 7 of the Service Tax Rules, 1994 which provides that the assessee shall submit half yearly returns in Form ST-3/ST-3(A)/ST-3C electronically. She submits that post 2001, the return filed under the Finance Act are on self assessment basis and are not assessed by the Central Excise Officers which is clear from the form of return to be filed as per Rule 7 as notified by the Government. Prior to 2001, service tax returns had an assessment memorandum wherein the signature and the stamp of the Central Excise Officers was required to certify that the service tax has been paid correctly or otherwise, whereas post 2001, the return format did not contemplate any such signature by the Central Excise Officer to approve the self assessment done by the assessee. 23. She further submits that under the Finance Act and the Service Tax Rules, there is no provision wherein the returns filed by the assessee are approved/ratified by the assessing officer and there is no administrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considering the various provisions of Customs Act and judgement of the Delhi High Court in the case of MICROMAX INFORMATICS LTD. Versus UNION OF INDIA 2016 (335) ELT 446 and AMAN MEDICAL PRODUCTS LTD. Versus COMMISSIONER OF CUSTOMS, DELHI 2010 (250) E.L.T. 30 (Del.), the Hon ble Apex Court has set-aside both the judgements by observing in Para 46 as under:- 46. The decision in Intex Technologies (India) Ltd. v. Union of India has followed Micromax (supra). The reasoning employed by the High Courts of Delhi and Madras does not appear to be sound. The scope of the provisions of refund under Section 27 cannot be enlarged. It has to be read with the provisions of Sections 17, 18, 28 and 128. She also submits that the Hon ble Supreme Court categorically held that the provisions of the refund under Section 27 of the Customs Act cannot be enlarged to include the assessment which is governed by Sections 17,18, 28 and 128 of the Act. 29. She further submits that the Hon ble Apex Court after discussing the period prior and after the amendment in Section 17 of the Customs Act by Finance Act 2011, the Hon ble Apex Court in ITC Limited cited (supra) has laid down the law that order of self ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as taken by the department while filing the appeal against the Tribunal in the case of M/s Cadila Healthcare cited (supra), the same cannot contest now is contrary to the decision of the Tribunal in the case of DHARAMPAL PREMCHAND LTD. Versus COMMISSIONER OF CENTRAL EXCISE, NOIDA 2020 (373) E.L.T. 423 (Tri. - All.). 34. After considering the submissions of both the parties and perusal of the various provisions of the Customs Act, 1962 and Finance Act, 1994 and the decisions relied upon by both the parties, we think the only issue before us is that whether the judgement of Hon ble Apex Court in the case of ITC Limited cited (supra) is applicable to refund of service tax without challenging the assessment in appeal and whether the provisions of the Customs Act with regard to assessment , refund and appeal are pari-materia with the provisions of service tax as provided in the Finance Act, 1994. 35. Before adverting to the above said issue, it will be proper to reproduce the relevant provisions of the Customs and Service Tax law as applicable to assessment, refund and appeals :- Section 2 (2)-Definition [(2) assessment means determination of the dutiability of any goods and the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch information.] (4) Where it is found on verification, examination or testing of the goods or otherwise that the self- assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, re-assess the duty leviable on such goods. (5) Where any re-assessment done under sub-section (4) is contrary to the selfassessment done 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 suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stment of duty after the final assessment thereof or in case of re-assessment, from the date of such re-assessment.] (2) If, on receipt of any such application, the 2 [Assistant Commissioner of Customs or Deputy Commissioner of Customs] is satisfied that the whole or any part of the 3 [duty and interest, if any, paid on such duty] paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund: Provided that the amount of 3 [duty and interest, if any, paid on such duty] as determined by the 2 [Assistant Commissioner of Customs or Deputy 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 3 [duty and interest, if any, paid on such duty] paid by the importer, 4 [or the exporter, as the case may be] if he had not passed on the incidence of such 3 [duty and interest, if any, paid on such duty]to any other person; (b) the 3 [duty and interest, if any, paid on such duty] on imports made by an individual for his personal use; (c) the 1 [duty and interest, if any, paid on such duty] borne by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , may be rescinded by the Central Government at any time by notification in the Official Gazette.] 46. Entry of goods on importation . (1) The importer of any goods, other than goods intended for transit or transhipment, shall make entry thereof by presenting 4 [electronically] 5 [on the customs automated system] to the proper officer a bill of entry for home consumption or warehousing 6 [in such form and manner as may be prescribed]: 7 [Provided that the 8 [Principal Commissioner of Customs or Commissioner of Customs] may, in cases cases where it is not feasible to make entry by presenting electronically 5 [on the customs automated system], allow an entry to be presented in any other manner: Provided further that] if the importer makes and subscribes to a declaration before the proper officer, to the effect that he is unable for want of full information to furnish all the particulars of the goods required under this sub-section, the proper officer may, pending the production of such information, permit him, previous to the entry thereof (a) to examine the goods in the presence of an officer of customs, or (b) to deposit the goods in a public warehouse appointed under section 57 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order may also be made electronically through the customs automated system system on the basis or risk evaluation through appropriate selection criteria: Provided further that] the Central Government may, by notification in the Official Gazette, permit certain class of importers to make deferred payment of said duty or any charges in such manner as may beprovided by rules.] 6 [(2) 7 [The importer shall pay the import duty (a) on the date of presentation of the bill of entry in the case of self assessment; or (b) within one day (excluding holidays) from the date on which the bill of entry is returned to him by the proper officer for payment of duty in the case of assessment, reassessment or provisional assessment; or (c) in the case of deferred payment under the proviso to sub-section (1), from such due date as may be specified by rules made in this behalf, and if he fails to pay the duty within the time so specified, he shall pay interest on the duty not paid or short-paid till the date of its payment, at such rate, not less than ten per cent. but not exceeding thirty-six per cent. per annum, as may be fixed by the Central Government, by notification in the Official Gazette.] 8 [Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 69, shall furnish tothe Superintendent of Central Excise, a return in such form and in such manner and at such frequency as may be prescribed. SECTION 71. Scheme for submission of Returns through Service Tax Preparers. (1) Without prejudice to the provisions of section 70, the Board may, by notification in the OfficialGazette, frame a Scheme for the purposes of enabling any person or class of persons to prepare and furnish a return under section 70, and authorise a Service Tax Return Preparer to act as such under the Scheme. (2) A Service Tax Return Preparer shall assist the person or class of persons to prepare and furnish the return in such manner as may be specified in the Scheme framed under this section. (3) For the purposes of this section, (a) Service Tax Return Preparer means any individual, who has been authorised to act as aService Tax Return Preparer under the Scheme framed under this section; (b) person or class of persons means such person, as may be specified in the Scheme, whois required to furnish a return required to be filed under section 70. (4) The Scheme framed by the Board under this section may provide for the following, namely: (a) the manner in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a judge in his own case . 38. Further, we note that there is vast difference between self assessment and self assessment which is further approved/ratified/endorsed by the assessing officer. We also find that the Ahmedabad Bench of the Tribunal in their judgement in the case of M/s Cadila Healthcare cited (supra) has considered the provisions of service tax and Customs Act and also the judgement of the Hon ble Apex Court in the case of ITC Limited cited (supra) relating to maintainability of refund without challenging the assessment/self assessment in appeal. 39. After considering the provisions of both the statutes and the decision of ITC Limited s case, the Division Bench of Ahmedabad Tribunal in Cadila Healthcare s case cited (supra) came to the conclusion that the ratio of ITC Limited cited (supra) is not applicable to refund claims filed under the service tax law. The relevant findings are provided in Para 4.6 and 4.7 as under:- 4.6 Revenue have strongly argued that appellant s refund is not maintainable on the ground that the self assessment of Service Tax payment has not been challenged by filing appeal before the Commissioner(Appeals). In this regard, he relied upon var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner or Commissioner of Central Excise. In the case of self assessment of Service Tax, there is no order of assessment passed by any officer below the rank of Principal Commissioner or Commissioner of Central Excise. Therefore, there is no provision corresponding to section 47(2) of Customs Act, 1962 in the Finance Act, 1994. Therefore, there is a clear distinction between the assessment under Customs and Service tax. Therefore, ratio of ITC Ltd. case cannot be applied in the matter of Service Tax. We have also noticed that Hon ble Supreme Court in the ITC case also considered the case of Central Excise duty where the assessments were provisional. In that case, final assessment order was also passed. The assessee paid the amount so demanded. The assessee not being aware of the particular benefit of notification at the time of finalisation of assessment does not claim it. He did not appeal against a speaking order finalising provisional assessment and the assessee filed refund claim under section 11(b) of Central Excise Act, 1952 in respect of duty so paid. It is that refund claim which was rejected by the Supreme Court as not maintainable without challenging the order of final asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon‟ble Tribunal was correct and justified in holding that the services provided by a partner to its partnership firm do not fall under the ambit of services as per Finance Act, 1994 and that the remuneration received from the partnership firm cannot be treated as consideration against the service provided by partner to its partnership firm since remuneration was other than sharing of profit between partners. 42. Further, the appeal of the Revenue before the Hon ble High Court was finally dismissed and thereafter, the Revenue has not filed any appeal against the said judgement before the Hon ble Apex Court. 43. Now, the question arises can the department raised the issue of maintainability after choosing not to contest the same before the Hon ble High Court of Gujarat in the case of M/s Cadila Healthcare cited (supra). On this issue, we are of the opinion that the department cannot take a different stand on the disputed issue against the appellant when it has accepted the same against assessee in the case of M/s Cadila Healthcare cited (supra). 44. It is pertinent to note that the Hon ble Apex Court and several High Courts in their decisions cited (supra) have held that an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 (12) S.T.R. 545 (Raj.). In view of the aforesaid discussion, we are not inclined to accept the reasoning adopted by the High Court, that too is also not under the provisions of the Customs Act. 48. The department s contention that the Hon ble Apex Court in ITC Limited cited (supra) has set-aside the judgement of Hon ble Rajasthan High Court, is in our view not correct because that judgement was not in appeal before the Hon ble Apex Court and the Hon ble Apex Court in Para 45 cited (supra) has observed that the reasoning given therein is not applicable to the Customs matters. The Hon ble Apex Court in the case of ITC Limited cited (supra) was only considering the provisions of the Customs Act and not the provisions of Finance Act, 1994 and hence rightly rejected the reasoning given by the Hon ble High Court in the service tax matters. 49. In our considered view, the said judgement of Hon ble Rajasthan High Court still holds the field even post ITC Limited and the judgement of ITC Limited cannot be applied to service tax refund claims. 50. Further, we also note that the Hon ble Apex Court in ITC Limited cited (supra) has considered in details provisions of the Customs Act relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion or concessions of duty availed consequent to any notification therefor under this Act, and in cases other than those where the importer or the exporter, as the case may be, confirms his acceptance of the said assessment in writing, the proper officer shall pass a speaking order within fifteen days from the date of assessment of the bill of entry or the shipping bill, as the case may be. 25. Section 17 as amended by Finance Act, 2011 is extracted hereunder : 17. Assessment of duty. - (1) An importer entering any imported goods under Section 46, or an exporter entering any export goods under Section 50, shall save as otherwise provided in Section 85, self-assess the duty, if any, leviable on such goods. (2) The proper officer may verify the self-assessment of such goods and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary. [(3) For verification of self-assessment under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any document or information, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained and thereupon, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Section 128 are extracted hereunder : 128. Appeals to [Commissioner (Appeals)]. (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a [Principal Commissioner of Customs or Commissioner of Customs] may appeal to the [Commissioner (Appeals)] [within sixty days] from the date of the communication to him of such decision or order : [Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.] [(1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing : Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.] (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf. 43. As the order of self-assessment i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly disposed of. Parties to bear their own costs as incurred. 52. In view of the above, it is evident that the scheme of assessment and clearance of goods imported is different from payment of service tax. In the scheme of clearance of imported goods, at any customs station, even if there is no direct intervention by the officers at the stage of assessment, there is intervention by the system which is put in place. The system as per the parameters fixed, checks the bills of entry, filed by the importer, for the correctness of classification and duty. Only when the system approves the duty payable, the importer proceeds to pay the applicable duty. Therefore, there is a system of intervention by the officers by way of parameters fixed by the department in the automation mode. If the particulars filled by the importer, while filing the bill of entry, match the required parameters, the system releases bills of entry for payment of duty or it releases the bill of entry to the desk of the assessment officer for necessary action. Once the applicable duty is paid by the importer, the system moves the bill of entry to the desk of the out of charge officer prompting him to either ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter of M/s VIAVI Solutions India Pvt. Ltd., Service Tax Appeal Nos. 60064/2020, this Tribunal vide order dated 08.10.2021 and subsequently vide order dated 04.02.2022 in M/s Shree Balaji Warehouse and M/s Om Shree Sairam Service Tax Appeal No. 60998-60000/2018 referred the appeals for consideration of the Larger Bench, framing the issue as under: Whether refund claim of service tax is maintainable in absence of any challenge to assessment or self-assessment in appeal or not? 58. The Tribunal (Mumbai Bench) in Karanja Terminal and Logistics Pvt. Limited vs. Assistant Commissioner- Mumbai South- 2021-TIOL-76-CESTAT-MUM took the view that the claim for refund of service tax is not maintainable. Later, the Ahmedabad Bench in Cadila Healthcare vs. CST-ST, Ahmedabad -2021-TIOL257-CESTAT-AHM vide order dated 27.04.2021 while distinguishing the assessment made under the Customs and the Service Tax, took a contrary view that the refund cannot be rejected on the ground that appeal against self-assessment was not filed and therefore the ratio of the decision of the Supreme Court in ITC Limited vs. CCE, Kolkatta2019 (368) ELT 216 (SC) is not applicable in so far as the matters relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce Act, 1994 cannot be treated as an assessment order as there is no provision in the said Act which provides for verification/ endorsement by the proper officer of the self assessed returns. Referring to the provisions of Section 85 of the Finance Act, 1994 which provides for an appeal to be filed by any person aggrieved by the decision or order passed by the adjudicating authority and also relying on the definition of the term adjudicating authority as defined in Section 2(a) of the Central Excise Act, 1944, the tax payers cannot be treated as an adjudicating authority to pass any order or decision so as to file an appeal under section 85. In that view, he submitted that an appeal under Section 85 lies only against a specific order of the concerned authority in Form ST-4 which apart from the other details, requires disclosure of the designation and address of the officer passing the decision or order appealed against. 61. In Service Tax Appeal No. 50021/2020, an application for intervention has been filed by Oriental Insurance Co. Limited. Ms. Krati Singh appearing for the applicant/appellant referred to the provisions of Section 70 and 71 of the Finance Act, 1994 w.e.f. 16.07.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentative submitted that the judgement in ITC Limited (supra) is squarely applicable and is not restricted only to the bills of entry endorsed by the proper officer under the Customs Act. She also submitted that there is no disparity in the definition of the term assessment provided under the provisions of the Customs Act and the Service Tax as both includes the concept of selfassessment within the meaning of assessment . She referred to various provisions of the Service Tax Act, 1994 and Rules made thereunder and in particular Section 73(3) and Rule 7B, to say that the assessee has an option of revision to correct the mistake or omission made at the time of self-assessment. According to her, the decision of the Tribunal in the case of Cadila Healthcare (supra) is not a good law as it runs contrary to the decision of the Supreme Court in ITC Limited (supra). 63. We have heard the learned counsels for the appellants and the authorised representative for the revenue and perused the records, the statutory provisions, the case law and also the written submissions filed during the course of hearing as well as submitted after the hearing. 64. Before adverting to the issue referred to us, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed, as such an appeal would not lie, is not sustainable in law, is contrary to what has been held by this Court in Escorts. 47. When we consider the overall effect of the provisions prior to amendment and post-amendment under the Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained under the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act. 65. I may now examine the provisions of the Finance Act, 1994 to ascertain the applicability of the judgement in ITC Limited (supra) to the present appeals. From the judgement of the ITC Limited (supra), three aspects which needs to be considered under the provisions of the Finance Act, 1994 are:- (i) Concept of assessment (ii) Procedure of assessment and (iii) Scope of appeal 66. The proceedings for levy of service tax com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of the quantity, weight, volume, measurement or other specifics of such goods; (e) the origin of such goods determined in accordance with the provisions of the Customs Tariff Act or the rules made thereunder, if the amount of duty, tax, cess or any other sum is affected by the origin of such goods; (f) any other specific factor which affects the duty, tax, cess or any other sum payable on such goods, and includes provisional assessment, self-assessment, re-assessment and any assessment in which the duty assessed is nil;' From the definition of assessment as quoted above, it is crystal clear that the concept of assessment under the Service Tax law stands on the same footing as the definition of assessment provided in section 2(2) of the Customs Act post amendment and therefore the observations of the Apex Court in ITC Limited (supra) would squarely apply and the self assessment in the service tax regime would be an order of assessment. The submission of the learned counsel for the appellant that unlike section 2(2) of the Customs Act, service tax law does not provide that self assessed return is an assessment order, is not correct. PROCEDURE OF ASSESSMENT: 68. Now I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 2(2). It is further provided that proper officer may verify the self-assessment of such goods, and for this purpose, examine or test any imported goods or exported goods or such part thereof as may be necessary. The power to verify self-assessment lies with the proper officer and for that purpose under Section 17(3), he may require the importer, exporter or any other person to produce such document and furnish such information, etc. If the proper office on verification has found on examination or testing of the gods or as part thereof or otherwise that the self-assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under the Act, may proceed to reassess the duty leviable on such goods. Section 17(5) of the Act as amended provides that where reassessment done under Section 17(4) is contrary to the assessment done by the importer or exporter regarding the matters specified therein, the proper officer has to pass a speaking order on the reassessment, within 15 days from the date of reassessment of the bill of entry or the shipping bill, as the case may be. The Explanation to amended Section 17 has clarified that import or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period as may be allowed by such officer or the audit party, as the case may be,- (i) the records as mentioned in sub-rule (2) of rule 5; (ii) trial balance or its equivalent; and (iii) the income-tax audit report, if any, under section 44AB of the Income-tax Act, 1961 ( 43 of 1961), for the scrutiny of the officer or audit party, as the case may be.] The authority to conduct scrutiny of returns for verifying the assessment done by the assessee is provided in rule 5 as enumerated above. Rule 5 requires the assessee to furnish to the Superintendent of Central Excise all the records at the time of filing the return. The purpose of filing all such records is not a mere formality but for proper verification and authentication of the self assessed returns filed by the assessee. Further, Rule 5A authorises the Commissioner to empower any officer to carry out scrutiny, verification and checks as may be necessary to safeguard the interest of the revenue. The rule permits the officer to examine financial records for scrutinising the return to determine the correctness of the assessments made and the assessee is bound to make available all other records which the officer may demand. 70. Unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Offline return preparation utility available at http://www/aces.gov.in (Under Download). (iv) Prepares the return offline using this utility. The return preparation utility contains preliminary validations which are thrown up by the utility from time to time. (v) Assessee logs in using the User ID and password. (vi) Selects RET from the main menu and unloads the return. Instructions for using the offline utilities are given in detail in the Help section, under Download link and assesses are advised to follow them. (vii) Returns uploaded through this procedure are validated by the ACES before acceptance into the system which may take up to one business day. Assessee can track the status of the return by selecting the appropriate option in the RET submenu. The status will appear as uploaded meaning under process by ACES, Filed meaning successfully accepted by the system or Rejected meaning the ACES has rejected the return due to validation error. The rejected returns can be re-submitted after corrections. (viii) Once the Central Excise returns are filed online in ACES or uploaded to the system using the offline utility, the same cannot be modified or cancelled by the assessee. The Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and upload it again). (4) There is no provision in ACES application to allow assesses to make corrections in the Central Excise returns filed by them. Once the return is accepted by the system as successfully filed , no modification can be made by the assessee. However, if the return is rejected, the assessee can correct the errors and upload it again. The assesses are, therefore, advised to take utmost care while filing the returns. However, in case of Service Tax, the assessee can revise the return within a period of 90 days from the date of filing their original return. (f) Acknowledgement of e-filing of the return In the case of a Central Excise or Service Tax return filed online, ACES application software acknowledges it by displaying an Acknowledgement message. A unique document reference number is generated which consists of a 15 digit registration number of the assessee, name of the return filed, the period for which return is filed, etc. This is also automatically communicated to the email ID of the assessee by the application. In the case of an uploaded Central Excise return, using offline utility, similar acknowledgement is generated and sent after the acceptance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try once endorsed is an order of assessment will equally apply in the case of service tax returns filed by the assessee and hence it would be an order of assessment. 71. The learned authorised representative have referred to the provisions of section 73(3) of the Finance Act, 1994 and rule 7B of the Service Tax Rules, 1994 providing for modification or reassessment of service tax so as to challenge the self assessment done by the assessee in ST-3 returns. Section 73(3) and rule 7B are reproduced as under: 73(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 been made, may pay the amount of such service tax, chargeable or erroneously refunded, on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise Officer before service of notice on him under sub-section (1) in respect of such service tax, and inform the (Central Excise officer) of such payment in writing, who, on receipt of such information shall not service any notice under sub-section (1) in respect of the amount so paid: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat they have paid the tax under mistake could have been corrected by submitting revised returns within the prescribed time limit. SCOPE OF APPEAL: 72. The Supreme Court in ITC Limited (supra) rejected the contention raised by the assessee that no appeal lies against the order of self-assessment, on analysing the provisions of section 128 of the Customs Act which provides for an appeal against any order which is of wide amplitude. The Supreme Court further held that as the order of self assessment is an order of assessment as per section 2(2) of the Customs Act it is appealable by any person aggrieved. Applying the said logic to the provisions of Service Tax, I find as discussed above the definition of assessment in rule 2(b) of the Service Tax Rules includes self assessment and therefore it is an order of assessment. Section 85 of the Finance Act, 1994 like section 128 of the Customs Act also provides for an appeal against any decision or order and not only against a speaking order. Consequently, an appeal under section 85 of the Finance Act against an order of self assessment is maintainable. The provisions for filing an appeal under both the statutes is quoted below:- Section 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms and the provisions for the self assessment have been similarly provided. Under the Central Excise and Service tax, the procedure for assessment is put into motion with the filing of the Returns whereas under the Customs, it commences with the filing of the Bill of Entry . As I have seen from the Manual, the Returns filed by the assessee is an electronic integrated declaration accepted and as acknowledged whereby a unique document reference number is generated. If we see the definition of Bill of Entry as defined in Regulation 2(c) of Bill of Entry (Electronic Integrated Declaration) Regulations, 2011, the status of the Bill of Entry is the same as that of Returns under the Central Excise and Service Tax. Regulation 2(c) of the Regulations is quoted herein below:- 2(c) bill of entry means electronic integrated declaration accepted and assigned a unique number by the Indian Customs Electronic Data Interchange System, and includes its electronic records or print-outs; Explanation.- For the purposes of this clause, the electronic record shall have the meaning assigned to it in the Information Technology Act, 2000 (21 of 2000); Therefore, the self-assessed return the self-assessed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex Court in ITC Limited (supra) and I find that the concept of assessment , procedure of assessment and the scope of appeal is identical and has no difference. The only distinction is that under the Customs Act, an additional step is involved when the custom officer allows clearance of goods for home consumption as per the provisions of section 47 of the Customs Act, which is after the bill of entry is finally assessed under section 17 of the Customs Act and the duty is paid by the importer. In fact, the Apex Court in ITC Limited (supra) has neither referred to section 47 of the Customs Act nor discussed the implications of clearance of goods thereunder. In other words, the concept of assessment and procedure of assessment has actually no connection with the clearance of goods. Merely because the impact of assessment under the Customs results in clearance of goods is insignificant. 75. I may now consider the decision of the Rajasthan High Court in Central Office Mewar Palace Organisation Vs. Union of India (2008) 12 STR 545, heavily relied on by the appellants, the relevant para is quoted below:- 8. At the outset, it may be observed, that under the scheme of things, starting from S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We also observed that the judgment of Hon ble Rajasthan High Court in the case of Central Office of Mewar Palace Org. Vs. Union of India (supra) has been expressly approved by the Hon ble Supreme Court in the case of ITC Ltd., (supra) as the Hon ble Supreme Court stated that High Court judgment is not under provisions of the Customs Act. Therefore, unlike Customs, there is no express provision to file appeal against the self assessment of service tax by filing ST-3 return. Therefore, on the ground that appeal against the self-assessment was not filed, the refund claim cannot be rejected. 76. The learned counsel for the appellant has laid much emphasis that the decision of the Tribunal in Cadila Healthcare (supra) was challenged by the revenue and the same was dismissed by the High Court of Gujarat vide judgement reported in 2022 (66) GSTL 99 (Guj). Moreover, the issue of maintainability of the refund without challenging the self assessment was not taken by the department before the High Court and hence the same cannot be taken at this stage. From the judgement of the Tribunal in Cadila Healthcare (supra), I find that the main issue on merits was whether services provided by a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund applications made thereunder; ii) the definition of assessment in rule 2(b) of the Service Tax Rules includes self assessment of service tax by the assessee being similarly worded as section 2(2) of the Customs Act, consequently self assessment is an order of assessment under the service tax; iii) provisions of section 72 of the Finance Act,1994 read with the provision of the Manual for Scrutiny of Returns are akin to section 17 of the Customs Act, 1962 and therefore the procedure of assessment is identical under both the provisions; iv) returns being filed electronically and considered so by the officer, no speaking order is required at the stage of verification and validation of the returns; v) since returns filed by the assessee on self assessment basis on its acceptance by the officer amounts to an assessment order, an appeal under section 85 of the Finance Act would be maintainable and refund application can be considered only after the same is modified by an higher authority under the Act. 78. In view of my discussion above, I answer the reference in favour of the revenue and against the appellants. (Order pronounced on 2023). (Binu Tamta) Member (Judicial) PER: HO ..... X X X X Extracts X X X X X X X X Extracts X X X X
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