TMI Blog2019 (4) TMI 1699X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act 1944 read with Section 83 of the Finance Act. Appeal allowed - decided in favor of appellant. - ST/20015/2018-SM - Final Order No. 20362/2019 - Dated:- 25-4-2019 - SHRI S.S GARG, JUDICIAL MEMBER Mr. Vishwasai, Advocate For the Appellant Mr. Kanipakam Murali, Superintendent (AR) For the Respondent ORDER Per : S.S GARG The present appeal is directed against the impugned order dated 08.09.2017 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has allowed the Department s appeal and set aside the Order-in-Original. Briefly the facts of the present case are that the appellant is engaged in providing taxa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the Deputy Commissioner and filed an appeal before the Commissioner (Appeals) who accepted the Department s appeal. 2. Heard both the parties and perused the records. 3. Learned counsel for the appellant submitted that the impugned order passed by the Commissioner (Appeals) is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the review order passed by the Department is not valid as the review order has been passed under Sub section 2 of Section 35E of the Central Excise Act, 1944 whereas the present case relates to Service Tax and the power of review lies under Section 84 of the Finance Act. On merit the learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct the refund claim on the ground of non submission of the documents. Further the appellant furnished all the required documents which were considered by the original authority and after considering the documents sanctioned the refund claim of ₹ 3,17,984/- (Rupees Three Lakhs Seventeen Thousand Nine Hundred and Eighty Four only) in respect of the excess service tax paid on GTA during month of May 2014 under Section 11B of the Central Excise Act 1944 read with Section 83 of the Finance Act. Against the said decision, the Department after reviewing the order has filed the appeal before the Commissioner (Appeals) on the ground that the assessment has not been challenged and therefore without challenging the assessment, refund cannot be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff item 22A and the applicable rate of duty would be 25% ad valorem. In the said order the Assistant Commissioner expressly stated that the assessee may prefer an appeal against his order to the Commissioner (Appeals). The assessee neither challenged the said order by filing any appeal nor did it pay the duty under protest. That is not the circumstances in this case. The learned DR further relied on Chief Engineer (Designs), Karnataka Power Corporation Ltd. v. Commissioner of Customs, Chennai - 2007-TIOL-1562-CESTAT-MAD, wherein also the case was of customs and reassessment of the goods were done. Hence, the reliance placed by the DR in this case is not relevant at all and they are also of no help to the Revenue. 6. On t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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