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TMI Blog2024 (12) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Flock (India) Pvt. Ltd. [ 2000 (8) TMI 88 - SUPREME COURT ] that the refund claims directly cannot be filed without challenging the assessment. The judgments cited by the learned advocate for the appellant are different from the fact and circumstance from the present case in as much as in none of the cases the issue for consideration was whether refund could be admissible without changing the classification of the service ; hence not applicable. The impugned order is upheld and the appeal filed by the appellant is rejected. - DR. D.M. MISRA, MEMBER (JUDICIAL) AND MRS. R. BHAGYA DEVI, MEMBER (TECHNICAL) Mr. N. Anand, Advocate for the Appellant Mr. K. Vishwanatha, Superintendent (AR) for the Respondent ORDER This is an appeal filed again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hom agreement of sale was entered. They had registered under the category of Works Contract Service and exercised option for payment of service tax under composite scheme and paid service tax at the rate of 4.12% totalling to Rs.1,54,047/-. Out of the said amount of service tax paid, Rs.1,19,146/- was paid in cash. It is his contention that pursuant to CBEC Circular No.108/2/09 dated 29.01.2009, a builder/developer was not liable to pay service tax and the liability arose after amendment by the relevant provisions w.e.f. 10.07.2010 by way of adding Explanation to Section 65(105)(zzq) and Section 65(105)(zzzh) of the Finance Act, 1994. Further, he has submitted that the subsequent Circular No.151/2/2012-ST dated 10.02.2012, it is clarified t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Commissioner(Appeals). Further, he has submitted that the appellant has been discharging service tax by declaring the classification of their services under Works Contract Service w.e.f. 01.06.2007 @ 4% under the Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007 vide Notification No.7/2008-ST dated 01.03.2008. They have never registered the services under the category of Construction of Residential Complex nor paid service tax @ 12%; therefore, filing the refund claim straightaway without challenging the classification of services would be contrary to the principles of law laid down by the Hon ble Supreme Court in the case of CCE, Kanpur Vs. Flock (India) Pvt. Ltd. [2000 (120) ELT 285 (SC)], Priya Blue Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant has straightaway filed the refund claim without challenging the classification / assessment of the services rendered by them as not Works Contract Service but falling under Construction of Residential Complex Services . The learned Commissioner(Appeals) has rightly held that the appellant had registered under Works Contract Service and not registered under the Construction of Residential Complex Service . It has been held by the Hon ble Supreme Court in the case of CCE, Kanpur Vs. Flock (India) Pvt. Ltd. (supra) that the refund claims directly cannot be filed without challenging the assessment, which has been endorsed by the Hon ble Supreme Court in the case of ITC Ltd. Vs. CCE, Kolkata-IV (supra). It is observed by the Apex cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise duty. Such a position cannot be countenanced. The view was taken by us also gains support from the provision in sub-rule (3) of Rule 11 wherein it is laid down that whereas a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf. The provision indicates the importance attached to an order of the appellate or revisional authority under the Act. Therefore, if an order which is appealable under the Act is not challenged then the order is not liable to be que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision for a period of limitation indicates that a refund claim could be filed without filing an appeal. Even under Section 11 under the Excise Act, the claim for refund had to be filed within a period of six months. It was still held, in Flock (India) s case (supra), that in the absence of an appeal having been filed no refund claim could be made. 8. The words in pursuance of an order of assessment only indicate the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an order of assessment to claim the refund. These words do not lead to the conclusion that without the order of assessment having been modified in appeal or reviewed a claim for refund can be maintained. (emphas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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