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TMI Blog2024 (6) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... ly held that all assessments, including self assessments are appealable and therefore, unless the same is modified, no refund could be sanctioned so as to alter the assessment on the principle that refund proceedings are in the nature of execution proceedings and they cannot be used to determine the liabilities of the parties. The appellant paid the service tax voluntarily and in the absence of any challenge the assessment became final. Following the law that refund can be allowed on the basis of the assessment made and assessment cannot be altered in the refund proceedings as they are merely in the nature of execution proceedings, the present refund claim by the appellant is not maintainable without challenging the assessment. The present refund proceedings, which have been filed on the basis of the decision in the case where appellant was not a party and in the absence of any challenge to the assessment, on which he paid the service tax are liable to be rejected. There are no reason to go into the issue of applicability of Section 11 B of the Excise Act - appeal dismissed. - HON BLE MS. BINU TAMTA , MEMBER ( JUDICIAL ) And HON BLE MR. P. V. SUBBA RAO , MEMBER ( TECHNICAL ) Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund, has been passed on to the other person. It was, therefore, proposed that the refund applications are liable to be rejected. The Adjudicating Authority vide order dated 03.09.2021 rejected the refund amounting to Rs.21,54,04,752/- , both on the ground of limitation as well as on the ground of unjust enrichment. The said order was confirmed in appeal by the impugned order on the ground of limitation only. Hence, the present appeal has been filed by the appellant before this Tribunal. 6. We have heard Shri P.K. Sahu, learned Counsel for the appellant and Ms. Jaya Kumari, learned Authorised Representative for the respondent/Revenue and perused the records of the case. 7. The submission of the learned Counsel for the appellant is to the following effect:- 7.1 The appellant has deposited service tax under mistake of law. When its activities of providing facilities and amenities to its members were not taxable, the procedure prescribed in Section 11 B does not apply. Reliance was placed on the decision of Delhi High Court in National Institute of Public Finance Policy Vs. Commissioner of Service Tax 2019 (20) GSTL 330 (Delhi) , where it has been held that limitation of one year as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same is beyond the show cause notice. According to him, no such averment has been made in the show cause notice or in the orders passed by the authorities below. We do not find that the objection raised is sustainable for the simple reason that the decision of the superior courts is binding on the forum below and the law declared needs to be followed in all the pending proceedings. 10. To deal with this objection, we may examine the genesis of the present litigation. The appellant had deposited the service tax, latest by 06.07.2017 when the issue of levy of service tax upon members clubs was subjudiced before the judicial forums. The appellant had not chosen to challenge the levy of service tax and therefore, the assessment in the case of the appellant had attained finality. The appeals involving levy of service tax on members club were decided by the Apex Court in favour of the appellants therein vide judgement dated 03.10.2019, when there was no lis between the appellant and the Department, however the appellant taking the benefit of the decision of the Apex Court in Calcutta Club Ltd. (supra) claimed the refund of the service tax paid by them. Today when the refund applications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court to pronounce a new rule but to maintain and expound the old one . In other words, Judges do not make law, they only discover or find the correct law. The law has always been the same. If a subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. To put it differently, even where an earlier decision of the Court operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood. In the case of Gannon Dunkerley Co. Ltd. Vs. Commissioner of Central Excise and Service Tax (Adj.), New Delhi 2020 (43) GSTL 183 (Tri.-Del.) , the Tribunal allowed the appellant to raise additional grounds relating to works contract though neither in the reply to the show cause notice nor before the Commissioner (Adj.), this plea was taken on the ground that whether the activity of the works contract would be leviable to service tax prior to 1st June, 2007 was decided by the Supreme Court in Larsen Toubro Limited 2017 (354) ELT A-101 (SC) in the year 2015. 12. We now come to the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 13. Since the issue in the case of ITC Ltd. (supra) was considered mainly with reference to the provisions of the Customs Act, there were conflicting views of different Benches of the Tribunal as to whether the decision of the Apex Court in ITC Ltd. would be applicable in case of refund applications of service tax paid under self-assessment. The issue was considered by the Larger Bench of the Tribunal in Shri Balaji Warehouse 2023 11 CENTAX 184 (Tri.-Chandigarh) and the majority decision of two to one decided that ITC Ltd. decision will not apply to service tax matters. Immediately after the decision of the Larger Bench, the same issue of admissibili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l No.52722/2016 Final Order No.50697/2023 dated 16.05.2023 (4) Oriental Insurance Co. Vs. CCE ST,LTU, Delhi Final Order No.50011/2020 in ST Appeal No.51609/2016 dt.09.01.2020 (5) CCE Service Tax Vs. Oriental Insurance Company Ltd. 2023 SCC Online Del 6065 Taking note of the aforesaid decisions and with due regard, we find that either the said decisions have been pronounced prior to the decision in ITC Ltd. (supra) on 18.09.2019 or the same have not considered the issue of refund in the light of the said decision. We cannot ignore the fact that the decision in ITC Ltd. deliberated the issue of refund claims considering the provisions of the Customs Act and therefore, there was doubt as to its applicability to the refunds under the service tax. The said issue now stands concluded by the Division Bench of the Delhi High Court in B.T. (India) Pvt. Ltd. (supra), which has been recently delivered on 06.11.2023, whereas the decision in the case of Oriental Insurance Company Ltd. (supra) relied on by the learned Counsel for the appellant was delivered on 20.09.2023 in the facts of that case as both the judgments have been delivered by the same Bench. Accordingly, the issue has been decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be entitled to file a suit or a writ petition for refund of the duty paid by him within three years of such discovery of mistake? Instances of this nature can be multiplied. It may not be a decision of the Supreme Court that lead `X to discover his mistake; it may be a decision of the High Court. It may also be a case where `X fights up to first appellate or second appellate stage, gives up the fight, pays the tax and then pleads that he has discovered the mistake of law when the High Court has declared the law. The fact is that such claims have been entertained both in writ petitions and suits until now, purporting to follow the law declared in Kanhaiyalal, and are being allowed and decreed, sometimes even with interest. The Union of India says that this can never be. It says, a manufacturer must fight his own battle and only if he succeeds therein, can he claim refund. He cannot take advantage of success of another manufacturer and that no suit or writ is maintainable by him for refund on the ground of alleged discovery of mistake of law on the declaration of law by this Court or a High Court (or a Tribunal or any other authority under the Act) in the case of another person. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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