TMI Blog2022 (3) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate authority containing factual findings in the first round which has attained finality, the same is binding on the revenue. The only course therefore available to the revenue is to follow the directions and findings contained in the said OIA and pass a consequential order. Instead, the authorities have proceeded tangentially as though the said findings of the Commissioner (A) are non-est., which is not the correct approach which amounts to judicial impropriety and hence, contrary to the prevalent judicial hierarchical structure. The impugned order cannot be sustained, and is set aside. In view of this, it is held that the appellant s service would qualify as export service, ARVs are heavy vehicles and hence, are not covered unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luding testing, inspection, certification, warranty, maintenance, etc. for which Bumar would pay 10% of the value of engine to the appellant, as coordination expenses. 2.2. Appellant had raised two debit notes in this regard, which according to the appellant was towards export of services and hence would not attract any levy under service tax. But since the appellant had paid the service tax, inadvertently, it accordingly made a refund claim on 04.8.2008 claiming refund of ₹ 20,65,822/-. The Assistant Commissioner issued a show-cause notice proposing to deny the refund claim made by the appellant. After due process, Order-in-original dated 31.01.2011 was passed where by Appellant s refund claim was rejected on various grounds. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the said contract, appellant had received a certain amount, out of which 10% was understood to be towards Coordination expenses. The subject equipment, which were held to be heavy motor vehicles in the first round, cannot be allowed to be tampered with, indirectly, by the revenue who have not challenged the same. 3.1. In the first round of litigation before the Commissioner (A), the Commissioner (A) had given factual findings. At paragraph 6 in the said OIA, the Commissioner (A) having held as under: 6. I have carefully gone through the appeal memorandum, the submissions made by the authorized representative for the appellant and the facts of the case. The appellant is a Defence PSU under the administrative control of the Minist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the de-novo order the authority has once again denied the refund solely on those very grounds which were in fact held to be the case of mere procedural or technical lapse and which were not substantive. This would mean that those technical or procedural lapse were not per se sufficient to deny otherwise eligible refund claim, have been once again used to deny appellant s claim. The Commissioner (A) had held in categorical terms, as regards the appellant s claim that Section 65(9) did not cover heavy vehicles which the revenue did not even question, by filing any appeal. Strangely, the Commissioner (A) in the second round, vide his order which is impugned here, in this appeal before this forum, has rejected appellant s claim on the very same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under RCM was by mistake as claimed by the appellant, which qualifies for refund. I find support in this regard, from a recent ruling of Hon ble jurisdictional High Court of Karnataka, in the case of Way2Wealth Brokers Pvt. Ltd. Vs. CCT, Bengaluru [2021-VIL-770-KAR-ST] wherein, it has been held as under: 14. . .. . It has been thus observed that what one has to see is whether the amount paid by the assessee under a mistaken notion was refundable. Mere payment made by the assessee will neither validate the nature of payment nor the nature of transaction. The same could not make it a service tax. When there is a lack of authority to collect such service tax not liable to be paid by the assessee, it would not give the Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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