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2014 (6) TMI 657 - CESTAT BANGALOREDenial of refund claim - service tax paid GTA services - consignment note was not issued by the Goods Transport agency - after coming to know that they were not liable to pay they filed a refund claim - Held that:- definition of consignment note in Rule 4B appears to have been provided to ensure that the recipient of the services who is required to pay Service Tax in accordance with Notification No. 35/2004-S.T. in the capacity of recipient can take the Cenvat credit was if all the details which are required as per Cenvat Credit Rules, 2004 are available and is not denied the benefit of credit on the ground that a proper consignment note has not been issued. The question that arises is just because private truck operator or a GTA violates the provisions of Rule 4B by not issuing a consignment note can the recipient refuse to pay Service Tax. According to the law, recipient of the services has been made liable to pay and there is no dispute on this issue. According to Notification No. 35/2004-S.T., person who pays the freight is liable to pay. Therefore just because a person has not issued consignment note in accordance with law and violated the provisions of law, it cannot be held that the recipient also can claim that he would also violate the law. Therefore, on analysis of the statutory provisions and Notification, etc., the recipient is liable to pay Service Tax in situation like this and therefore the refund claim has correctly been rejected. - Decided against the assessee. Rejection of refund claim of the ground of no challenge to assessment order - Held that:- When the Revenue contends that the appellant/assessee should have challenged the assessment before filing refund claim, it is expecting the impossible since how can a person challenge his own assessment. Moreover, this leads to the question as to before whom assessment should be challenged. In this case, assessment is by the assessee and this has to be treated as the Order-in-Original but there is no appellate authority prescribed in the statute. Therefore this is not a correct proposition of law. - the view taken by the Revenue that refund claim can be rejected on the ground that the refund claim has been made without challenging the assessment order cannot be sustained.
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