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2020 (3) TMI 316

..... e were of the view that their service would fall under the new category and the Service Tax paid by them was not statutorily require to be paid - HELD THAT:- The issue is no more res integra in view of the decision of the Tribunal in the case of CCE, Hyderabad Vs Vijay Leasing Company [2010 (12) TMI 782 - CESTAT, BANGALORE] where it was held that When the respondents came to know that the activity undertaken by them under these contracts would fall under the mining activity-which came into service tax net from 01/06/2007, the assessee was justified in filing the refund claim as the self-assessment cannot be considered as an assessment made by an officer under Section 73 against which an appeal or challenge lies. Appeal dismissed - decided a .....

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..... submissions made by the Id. JDR as regards the refund of the amount paid by the assessee on self assessment. It is his submission that the assessee having self-assessed, the amount of service tax payable and having discharged the same with interest, cannot now turn around and claim that he has paid the service tax, wrongly. This argument put forth by the Id. JDR is untenable for more than one reason. First of all, it is an admitted fact that the amount paid by the assessee under the self-assessment as per the provisions of the Finance Act, 1994. When the respondents came to know that the activity undertaken by them under these contracts would fall under the mining activity-which came into service tax net from 01/06/2007, the assessee was j .....

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..... idence to establish justification of the claim. This notice was replied to the effect, that they would furnish original invoices raised on account of non-taxable services, and the original debit/credit notes raised in favour of the clients, and evidence regarding payment received only for the balance amount after adjustment of such credit notes. 4. However, the learned Assistant Commissioner found, that the representative of the company, who appeared showed credit/debit notes issued to their clients/sister concerns, but could not produce invoices, details/evidence of value, ascertained for non-taxable/taxable services. With this, it was also found, that the assessee-company as a whole is registered, and has been depositing service tax, whic .....

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..... ice tax was charged are included under the head "Manpower Recruitment Agency" and "Security Services" and that they are covered bV the definition of "Management Consultant". Thus it was found, that the services were taxable, and the appeal was dismissed. It may be observed, that contention of the learned counsel for the appellant was, that all necessary documents been produced before the learned Assessing Officer. 6. The matter was carried in further appeal before the learned Tribunal, and surprisingly, the Tribunal dismissed the appeal by adopting yet different reasoning, viz, that since the assessee had not challenged the assessment order, the claim of refund cannot be entertained, so as to indirectly challen .....

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..... ld file appeal against the assessment order, and not having so filed appeal he cannot lay the claim of refund. Thus, the order of the Tribunal cannot sustain. 9. Then so far as the reasonings adopted by learned Commissioner are concerned, the learned Counsel for the appellant has invited our attention to Annex. 4, another order of the same authority, being Commissioner dated 30t1 September 2005, passed in the case of the assessee itself, for the subsequent period April 2000 to March 2002, wherein it has clearly been held, that all these services as cataloged in the said order are not chargeable to service tax. And consequently the proceedings initiated against the assessee, wherein the adjudicating authority had demanded tax, were set aside .....

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..... le High Court, that thepoint raised by Id. DR, is now squarely settled in favour of the assessee. In view of this, the Tribunals decision relied upon by the Id. ]DR will be of no consequence. 9. Accordingly, we are of the considered view that the findings reached by the Id.Commissioner (Appeals) in the impugned order are correct, proper and legal and does not require any intereference. Appeal filed by the Revenue is rejected. 5. We find that the facts of the present case are squarely covered by the decision of the Tribunal cited above. In view of our discussion above, we do not find any occasion to interfere with the impugned order and accordingly, the same is sustained. The appeal filed by the Revenue is rejected. (Order pronounced in the .....

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