TMI Blog2017 (3) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... or rejection - the notice relies upon the taxability of the activity as the ground for rejection. No other independent ground has been invoked. Just as a claim for refund on ground of non-taxability should be accompanied by a decision in appeal upholding that contention, a rejection of claim that tax not due was paid incorrectly would have to be backed by an order of assessment. The appellant is justified in claiming that the demand u/s 73(1) is mandated to complete the proceedings and would necessarily have to be followed by an adjudication order that can be legally challenged. By not issuing a notice and a consequential order, the assessee was also denied the opportunity to challenge the contention of Revenue on taxability. The i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at was described as 'deficiencies', among which was the correctness of the levy, and passed a final order of rejection on 28th January 2015. Aggrieved by this rejection, assessee carried the matter to first appellate authority, Commissioner of Central Excise (Appeals), Nagpur who, vide order-in-appeal no. NGP/EXCUS/000/APP/468/15-16 dated 17th December 2015, upheld the order-in-original. Hence this appeal. 3. As contended before the two lower authorities, appellant relies upon the decision of Commissioner of Central Excise Customs (Appeals), Aurangabad in the appeal of M/S Bombay Gujarat Roadways, the clarification regarding services incidental to 'transportation of goods by road' in circular no. 104/7/2008-ST dated 6th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le and the contention that the first appellate authority is not bound by the precedent is contrary to the canons of judicial discipline. There is no doubt that a decision in Aurangabad may have persuasive value in a decision on taxability but would not suffice as a basis for refund as a consequential relief. 7. The dispute before me pertains to the rejection of refund claim and not to a decision on taxability. The latter would flow from a demand under section 73 of Finance Act, 1994 and no such challenge appears on record. Nor is there any material on record to suggest that notice for such demand was issued. On the contrary, appellant asserts that it was the absence of demand for the amount in dispute that motivated the claim for refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in section 75 is clear that delayed payment of tax must need to be accompanied by interest at the appropriate rates. And a notice under section 73 of Finance Act, 1994 is not required to be issued only when, in accordance with section 73(3) of Finance Act, 1994, the assessee remits the tax and interest thereon before issue of notice. It would appear that, in the present dispute, appellant has not paid the interest due on the amount alleged to have been short-paid but paid subsequently. Explanation 1 in section 73(3) renders the exclusion of applicability of this sub-section to the present dispute. When interest has not been paid with short-paid tax, section 73(1) must be invoked, not for the interest which is to be recovered under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and interest, if any, paid on such duty in relation to which such refund is claimed was collected from or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person: xxxxxx Provided further that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. (2) If on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duly paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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