TMI Blog2006 (12) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of clause 152 of the Finance Act, 2003 and the deposit so made was refundable. 2. The ld. Counsel appearing for the appellants at the very outset invited attention to the order of adjudication passed on 21-5-04 which read as under claimed that refund of the tax paid was undeniable : As Clause 152 of the Finance Bill 2003, which was enacted as Sec. 160 of the Finance Act, 2003 has amended Notification No. 43/97 dated 5-11-1997 with retrospective effect from 16-11-97 to 1-6-98 so as to exempt Service tax on service provided by the goods Transport Operator to small scale industries, registered with the State Govt. and as the Noticee is reportedly SSI unit registered with the State Govt., I drop the proceedings initiated by the inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made and rejection thereof observing that that was barred by limitation was baseless for the reason that refund claim was filed on 4-6-04 which was not time barred being paid under protest. The order of rejection passed on 11-10-2004 denying refund was bad. He further submitted that even the Ld. Commissioner (Appeal) committed an error of law affirming the order of the Ld. Adjudicating officer. 3. Learned D.R. for Revenue submitted that holding letter dated 29-7-03 filed by the appellant was not an application for refund, the learned Commissioner (Appeals) was right in law to dismiss appeal of the appellant. Also, he had justly hold that the amount deposited on 8-11-02 by the Appellant was not a deposit for which the refund was time barr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity and Rule 6(i) of the Service Tax Rules, 1994 at the relevant point of time required that Service tax was also collectible from the receiver of taxable service. Such Rule was subject matter of legal scrutiny by the apex court in Laghu Udyog Bharati v. Union of India reported in 2006 (2) S.T.R. 276 (S.C.) = 1999 (112) E.L.T. 365 (S.C.) and the Hon ble Supreme Court in para 13 of the judgment held that the tax should be on the value of the Taxable services and it is only the person who provided the services can be regarded assessee and the rules, therefore, cannot be framed which do not carry out the purpose of the chapter and cannot be incompatible with the same in so far as collection of tax from service receiver was concerned. Accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 29-7-03 for refund. For deciding the matter, the proceeding which was initiated against the appellant in terms of show cause notice dated 13-11-02 and further followed by formal application for refund acknowledged by the Department on 4-6-94 is relevant. The Ld. Counsel for the appellant relied on the following decisions in support of his contentions : Commr. of Central Excise, BBSR v. Konark Wires (P) Ltd. Reported in 2000 (117) E.L.T. 681 (Tribunal) Commr. of C. Ex. Cus., BBSR-I v. Nilachal Concrete Products (P) Ltd. Reported in 2005 (192) E.L.T. 280 (Tri.-Kolkata) Asha Handicrafts v. Commr. of Central Excise, Mumbai-IV Reported in 2004 (177) E.L.T. 303 (Tri.-Mumbai) Maihar Cement v. Commr. of Central Excise, Bohpal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, (1996) 3 SCC 403. It should also be appreciated that power should be exercised for public good and not for personal benefit as held in State of Assam v. P.C. Misra - AIR 1996 (SC) 4301. The Apex Court in the case of Union of India v. Kamlakshi Finance Corpn. Ltd. Reported in 1991 (55) E.L.T. 433 (S.C.) at page 435 - 436 of the reported judgement held as under : The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-6-98, which was neither leviable nor realizable from the appellant and having paid the tax under protest, that shall be refundable. However, to refund, the application dt. 4-6-04 which was acknowledged by the Department on the same date should receive scrutiny of unjust enrichment. Only after satisfaction with the requirement of the doctrine, the authorities below may pass appropriate orders. 9. First appeal order is, therefore, unsustainable and is set aside, allowing appeal of the appellant with the direction that the Ld. Adjudicating authority shall examine refund application dated- 4-6-2004 in the light of the aforesaid observations, findings and law of the land and pass appropriate orders without further delay. (Pronounced on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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