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TMI Blog2024 (10) TMI 1547X X X X Extracts X X X X X X X X Extracts X X X X ..... ice tax returns accordingly, showing the amount paid as service tax so paid. Thereafter, the appellant felt that it was entitled to exemption notification no. 3/2013 [S.No.21(e)] and was not required to pay service tax at all on the rock phosphate which transported to its factory and filed a claim. The refund was rejected by the Assistant Commissioner, and such rejection was upheld by the Commissioner (Appeals) in the impugned order. Submissions of the appellant 3. Shri Vijay Kumar, learned counsel for the appellant made the following submissions: (i) The appellant had erroneously paid service tax and therefore, filed a refund claim in proper form. (ii) Since rock phosphate was a chemical fertiliser, it's transportation was exempted by Notification No. 3/2013 [S.No.21(e)] and the appellant was not required to pay service tax at all. Therefore, it was entitled to refund of the erroneously paid service tax. (iii) The Assistant Commissioner rejected the refund holding that rock phosphate was not a chemical fertiliser and hence it's transportation was not eligible for exemption notification. (iv) The Commissioner (Appeals) committed an error in upholding the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records. 6. The undisputed factual position is that the appellant had self-assessed service tax and filed returns which have not been modified through any appeal proceedings. The appellant directly filed refund claims which can be sanctioned only if the assessments are modified. 7. The settled legal position is that the refund proceedings are in the nature of execution proceedings and cannot be used to modify the assessment already made. Just as in an execution proceeding the decree cannot be modified, in a refund proceeding, the assessment cannot be modified as held by the Supreme Court in ITC Limited. The relevant portions of this judgment are as follows: "..... 43. As the order of self-assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression 'Any person' is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of re-assessment which is appealable but the provisions of Section 128 make appealable any decision or order under the Act including that of self-assessment. The order of self-assessment is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act. ....." 8. In BT (India) Pvt. Ltd, the Delhi High Court held that ITC Ltd would apply to service tax refunds also. The relevant portions of this judgement are below: "... 57. It becomes pertinent to note that both the Customs as well as the Excise Acts follow an identical procedure of self assessment. While Section 17 of the Customs Act enables an importer or an exporter, as the case may be, to self-assess and pay the duty leviable on goods, the said provision further empowers the proper officer to verify the self assessed return that may be submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return, is modified in accordance with the procedure prescribed in the statute. In our considered opinion, it is these principles enunciated in Flock (India), Priya Blue Industries and ITC Limited, which compel and convince us to observe that the impugned order is clearly rendered unsustainable. 65. Undisputedly, the petitioner had submitted self-assessment returns proceeding on the basis that the output services rendered by it would qualify as an "export of service‟ and thus it being not exigible to service tax. The aforesaid self-assessment returns remained untouched and had not been questioned by the respondents either in terms of Sections 72 or 73 of the Act. The application for refund of CENVAT credit was founded on the petitioner assessing that it was not liable to pay service tax on services so exported. The accumulation of CENVAT credit came about in light of the various input services received by the petitioner and it having availed credit of service tax paid thereon in terms of Rule 3 of the CCR Rules. It was in respect of the accumulated CENVAT credit that the application for refund came to be made. 66. In our considered view, unless the self-assessed return, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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