TMI Blog2009 (1) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee was not appealed against – neither notice u/s 73 issued nor order of assessment issued by officer- Admittedly, when no order capable of being appealed against, had ever been passed, it cannot be said that the assessee could file appeal against the assessment order, and not having so filed appeal he cannot lay the claim of refund – refund entitled - ST/104/2008 - A/57/WZB/2009-CIV/SMB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Prev.), 2004 (64) RLT 321 (SC)=2004 (172) ELT 145 (SC). 3. The brief facts of the case are that the amount of Service Tax payable was self assessed by the assessee in accordance with provision of Section 70 of the Finance Act, 1994 (as amended by the Finance Act, 2001) and assessee has paid the Service Tax. They have also filed Service Tax return in form ST-3 for the period October, 2006 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the position. I find that the Tribunal in the case of Central Office Mewar Palace Orgn. Ltd. Vs. Commissioner of Central Excise, Jaipur reported in 2006 (4) STR 192 (Tri.-Del.) has observed that the refund claim was filed challenging the assessment order on the ground that certain services are not covered under the scope of service tax. Relying upon the Hon'ble Supreme Court jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice is issued under Section 73, and it is found, that service tax is not levied or paid, or has been short levied or short paid etc. In that view of the matter, the very basis/reasonings given by the learned Tribunal, simply have no legs to stand. Admittedly, the appeal under Section 85 lies against a specific order of the concerned authority in Form ST-4, which requires to disclose, designatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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