TMI Blog2021 (10) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... HON BLE MR. ASHOK JINDAL, MEMBER (JUDICIAL) AND HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) For the Appellant : Shri Gajendra Maheshwari, Advocate For the Respondent : Shri Bhasha Ram, AR ORDER Per : ASHOK JINDAL Heard the parties at length. 2. Brief facts of the case are that the appellant filed the refund claim of the service tax by them paid erroneously on export of service under the category of Business Auxiliary Service for which, it is claimed that this is an exempted from service tax. The said refund claim was rejected holding that the appellant has failed to pass the bar of unjust enrichment. On appeal before the Commissioner (Appeals), the matter was remanded back to examine the refund claim on merits. Thereafter, the adjudicating authority again rejected the refund claim on the ground that the service provided by the appellant falls under Rule 2 (f) of the Place of Provisions of Services Rules, 2012. Further, the service falls under the category of intermediary service. The refund claim was also rejected by the Commissioner (Appeals). Aggrieved by the said order, the appellant is before us. 3. Before going into the merits of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under this Act by an officer of customs‟ lower in rank than a Principal Commissioner of Custom. The Court has interpreted the said section in two limbs: (a) order passed under this Act‟, which includes self-assessed bill of entry‟ as an order of assessment under section 2(2) of the Customs Act, 1962. (b) by an officer of Customs‟ which means that an order should be passed by the customs officer. That is to say that bill of entry is an order which is endorsed/verified by the proper officer under section 17 (1) of the Customs Act, 1962 and hence, such endorsed bill of entry shall be treated as an order passed by the Customs officer. 8. Therefore, the Court concluded that bill of entry by virtue of endorsement/verification by the proper officer under section 17(1) read with section 2(2) of the Customs Act becomes an order of assessment‟ against which an appeal can be filed under section 128 of the Customs Act. 9. It is his submission that as per section 85 of the Finance Act, 1994 an appeals to the Commissioner of Central Excise (Appeals) can be filed by any person aggrieved by any decision or order passed by adjudicating authority subo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treated as order of assessment and any aggrieved person can file appeal against such assessment order of Bills of entry. In the Service Tax matter, the assessee simply file the ST-3 return and no order is passed by the departmental officer which can be challenged by way of filing appeal before the Commissioner (Appeals) . 4.7 As per the plain reading of the above section 85(1), it provides for filing an appeal before the Commissioner (Appeals) only in case an order is passed by an officer below the rank of Principal Commissioner or Commissioner of Central Excise. In the case of self assessment of Service Tax, there is no order of assessment passed by any officer below the rank of Principal Commissioner or Commissioner of Central Excise. Therefore, there is no provision corresponding to section 47(2) of Customs Act, 1962 in the Finance Act, 1994. Therefore, there is a clear distinction between the assessment under Customs and Service tax. Therefore, ratio of ITC Ltd. case cannot be applied in the matter of Service Tax. We have also noticed that Hon ble Supreme Court in the ITC case also considered the case of Central Excise duty where the assessments were provisional. In that ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the nature of execution proceedings. It is not open to the authority which processes the refund to make a fresh assessment on merits and to correct assessment on the basis of mistake or otherwise. 42. It was contended that no appeal lies against the order of self-assessment. The provisions of Section 128 deal with appeals to the Commissioner (Appeals). Any person aggrieved by any decision or order may appeal to the Commissioner (Appeals) within 60 days. There is a provision for condonation of delay for another 30 days. The provisions of Section 128 are extracted hereunder : 128. Appeals to Commissioner (Appeals). - (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Principal Commissioner of Customs or Commissioner of Customs may appeal to the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order : Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days,allow it to be presented within a further period of thirty days. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, re-assessment is not permitted nor conditions of exemption can be adjudicated. Re-assessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or reassessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union of India - 2009 (240) E.L.T. 490 (Bom.) though the High Court interfered to direct the entertainment of refund application of the duty paid under the mistake of law. However, it was observed that amendment to the original order of assessment is necessary as the relief for a refund of claim is not available as held by this Court in Priya Blue Industries Ltd. (supra). 45. Reliance was also placed on a decision of Rajasthan High Court with respect to service tax in Central Office Mewar Palace Org. v. Union of India - 2008 (12) S.T.R. 545 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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