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TMI Blog2024 (10) TMI 1547X X X X Extracts X X X X X X X X Extracts X X X X ..... BT (India) Pvt. Ltd.[supra] inasmuch as the question is whether refund of service tax paid can be sanctioned or denied so as to modify the self-assessments already made and it has been answered in the negative by the Delhi High Court. The only difference between this case and that of BT (India) Pvt. Ltd. is that the assessee would have been entitled to refund and in this case, the appellant would not be entitled to refund if the refund is processed as per the assessments. But that is immaterial. In view of the judgment of ITC Ltd and BT (India) Pvt. Ltd. [supra] it is held that since the appellant had not assailed the self-assessments and as per the assessments the appellant is not entitled to any refund, the appellant would not be entitled to refund and it has been correctly rejected. Appeal dismissed. - HON'BLE MR. JUSTICE DILIP GUPTA , PRESIDENT And HON'BLE MR. P. V. SUBBA RAO , MEMBER ( TECHNICAL ) Shri Vijay Kumar, Advocate for the Appellant Shri Anand Narayan and Shri Manoj Kumar , Authorised Representative for the Respondent ORDER P. V. SUBBA RAO : The order dated 19.6.2018 the impugned order passed by the Commissioner (Appeals) is assailed by M/s. Jagadamba phosp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory and paid it correctly. (ii) The assessments attained finality as neither side filed an appeal against the assessment order nor were they otherwise modified. (iii) Refund proceedings are in the nature of execution proceedings and cannot be used to determine the mutual rights and liabilities between the assessee and the Revenue decided through assessment, including self-assessments. (iv) Refund can be sanctioned or rejected as per the assessment already made and not so as to modify them. This is the law laid down by Supreme Court in ITC Ltd vs. Commissioner of Central Excise, Kolkata IV. 2019 (368) E.L.T. 216 (S.C.). (v) In the case of BT (India) vs. UOI W.P.(C) 13968/2021 decided by Delhi High Court on 06 November 2023 , by a detailed judgement and order Delhi High Court held that ITC Limited applies to service tax also, and unless the assessments including self-assessments are modified, refunds can be sanctioned or denied as per the assessment only. (vi) While it is not necessary to go into the merits of the claim, rock phosphate is not a chemical fertiliser, but is only a mineral which the appellant uses as raw material to manufacture the fertiliser, SSP. Therefore, the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 44. The provisions under Section 27 cannot be invoked in the absence of amendment or modification having been made in 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 re-assessment 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, re-assessment is not permitted nor conditions of exemption can be adjudicated. Re-assessment is permitted only under Section 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 re-assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 exercise of powers of reassessment, best judgment assessment or where it be alleged that duty had been short levied, short paid or erroneously refunded, those powers would not be available to be exercised at the stage of considering an application for refund. Having noticed the statutory position which prevails, we turn then to the decisions which would have a bearing on the question which stands posited. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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