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TMI Blog2024 (6) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 facts in the present case are not disputed to the extent that both the service provider and the service recipient assessed their taxable value and paid the service tax as per their liability. The amount of service tax worked out and paid on the free of cost supplied material by the service provider and service recipient was deposited in the government exchequer on account of their service tax liability during the relevant period. Appeal allowed. - MS. BINU TAMTA, MEMBER (JUDICIAL) AND MR. P. V. SUBBA RAO, MEMBER (TECHNICAL) Shri Pulkit Kapoor, Chartered Accountant , learned Counsel for the appellant. Shri Harsh Vardhan, Authorised Representative for the respondent. ORDER The appellant has assailed the Order-in-Appeal no.162- 163(CKJ)ST/UDR/2018 dated 27.03.2018, whereby the Commissioner (Appeals) rejected the refund claim being time barred. 2. The appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the refund proceedings cannot overturn the self assessment made by the appellant. which had attained finality as assessment includes self assessment of service tax. The learned Authorised Representative relied on the decision of the Apex Court in ITC Limited Vs. Commissioner of Central Excise, Kolkata-IV [2019 (368) ELT 216 (SC)] and the later decision of the Delhi High Court in B.T. (India) Pvt Ltd. [2023 13 CENTAX 89 (Delhi)] followed by this Tribunal in the case of M/s. Kalyan Toll Infrastructure Ltd. Vs. Commissioner of Central Excise and CGST, Indore [2024 (5) TMI 369 CESTAT-NEW DELHI]. 7. Heard both sides and perused the records. The law of refund has been settled by the Apex Court that refund can be sanctioned only in pursuance of the assessment made and not de hors the assessment. The principle was laid down in the case of Priya Blue Industries versus Commissioner of Customs [2004 (172) ELT 145 (SC)] under the provisions of the Customs Act and thereafter, in the case of Collector of Central Excise versus Flock India Private Ltd. [2000 (120) ELT 285 (SC)] a case under Central Excise Act. Later, in the case of ITC Limited (supra), the issue considered was whether the refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in ITC would be applicable in case of refund applications of service tax paid under self-assessment. The issue was considered by the Larger Bench in Shri Balaji Warehouse [2023 (11 CENTAX 184 (Tri.-Chandigarh)] and the majority decision of two to one decided that ITC decision will not apply to service tax matters. Immediately after the decision of the Larger Bench, the same issue of admissibility of refund under the service tax regime came before the Delhi High Court in B.T (India) Pvt Ltd. (supra) however, here the Department had rejected the refund claim on the ground that the services did not qualify as export of services. The Delhi High Court holding that the decision of the Apex Court in ITC Limited applies to the service tax refund and therefore, they have to be allowed as per the assessment made including the self-assessment on the same analogy that the refund claims are in the nature of execution proceedings. The observations of Delhi High Court in B.T. (India) Pvt. Ltd. (supra) is quoted below:- 66 . In our considered view, unless the self-assessed return, as submitted had been questioned, re-opened or re-assessed and the assertion of the petitioner of the services r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n claim refund of the duty paid by him on the ground that he has discovered the mistake of law when the Supreme Court has declared the law in the case of another manufacturer and whether he can say that he will 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e extent that both the service provider and the service recipient assessed their taxable value and paid the service tax as per their liability. The amount of service tax worked out and paid on the free of cost supplied material by the service provider and service recipient was deposited in the government exchequer on account of their service tax liability during the relevant period. In terms of the decisions discussed above, the said assessment had attained finality. Without challenging the assessment, the appellant cannot seek refund on the basis of the subsequent decision of the Apex Court in ATR Constructions (supra) holding that service tax is not leviable on free of cost supplied material. The instant case is squarely covered by the settled principle as enunciated in the series of decisions referred above and therefore, the appellant is not entitle to the refund as claimed. 12. Though the Authorities below have rejected the refund application on the ground of latches, however the orders were passed prior to the decision of the Apex Court in ITC Ltd, subsequently clarified by the High Court of Delhi in M/s. B.T (India) Pvt. Ltd. (supra) and followed by the Tribunal in M/s Kalya ..... X X X X Extracts X X X X X X X X Extracts X X X X
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