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2016 (12) TMI 539 - CESTAT HYDERABADRejection of refund claim - payment of service tax on the transportation of cement under GTA services for the period 16-11-1997 to 02-06-1998 under protest, pursuant to a letter issued by department dated 10-12-2003 requiring the appellant to pay service tax - whether the department can retain the amount paid as service tax by the appellant under protest under the category of GTO services for the period 16-11-1997 to 02-06-1998? - Held that: - the demand can be confirmed only if a show cause notice is issued prior to the amendment brought out to the Finance Act making the service recipient liable to pay service tax. In this case, undisputedly the department has not issued a show cause notice quantifying the amount. A letter issued to the appellant cannot take the place of a show cause notice provided under law. The Ld. Counsel for appellant submitted that a second letter was issued to the appellant demanding interest after payment of amount under protest. However, for reasons not known, department has refrained from raising a demand/issuing a show cause notice - as the appellant has paid the Service Tax amount under protest, I hold that the appellant is eligible for refund. The impugned order rejecting the refund is set aside - appeal allowed - decided in favor of appellant-assessee.
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