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TMI Blog2025 (3) TMI 1350X X X X Extracts X X X X X X X X Extracts X X X X ..... ces' as per clause(f) of Section 66E of the Finance Act, 1994 [The Finance Act] and the same is not covered under the Negative List provided under Section 66D of the Act and is also not otherwise exempted under the Mega Exemption Notification No.25/2012 dated 20.06.2012. The appellant entered into a contract with Nuclear Power Corporation of India (Ltd) [NPCIL] for renting of certain buses and motor vehicles to NPCIL. In the work order, it was mentioned that the contract value was inclusive of service tax but due to RCM for payment of service tax viz. tax on abated value (40%) would be deducted by the NPCIL from the bills of contractor and remitted to Service Tax Department directly. 3. Notification No. 26/2012-ST dated 20.06.2012 provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to why refund claim should not be rejected. The Adjudicatiing Authoirty vide order dated 13.07.2016 rejected the entire refund claim of Rs.8,43,105/- on merits. The appeal filed by the appellant was partly allowed to the extent that refund for 'motor cabs' given on rent to NPCIL was allowed and the remaining claim regarding the bigger vehicles was rejected. Being aggrieved, the appellant has preferred this appeal. 6. Heard Shri Vijay Kumar, Advocate for the appellant and Ms. Jaya Kumari, Authorised Representative for the Department. 7. Since the issue in the present appeal relates to the refund claim, the same has to be considered in the light of the decision of the Apex Court in the case of ITC Ltd. Vs. CCE, Kolkata-IV-2019 (368) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The provisions under Section 27 cannot be invoked in the absence of amendment or modification having been made in the bill of entry on the basis of which self-assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or re-assessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verify the self assessed return that may be 7 ST/53046/2018 submitted. In terms of Section 17(4) of the said enactment, if the proper officer on verification, examination or testing of the goods comes to the conclusion that the self assessment is incorrect, it becomes entitled to reassess the duty leviable on goods. It is in extension of the aforesaid power that sub-section (5) of Section 17 speaks of reassessment and the obligation of the proper officer to pass a speaking order in support of the exercise of reassessment. 58. Section 27 enables a person to claim refund of duty or interest which may have been either paid or borne by it. Section 27(2) of the Customs Act, in terms identical to Section 11B (2) of the Excise Act, speaks of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication. It was this claim which came to be ultimately negatived by the Supreme Court and which held that a claim for refund cannot be entertained unless the order of assessment, and which would include a self-assessment 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 afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in ITC Limited had described refund proceedings to be akin to execution proceeding......." 9. In the present case, the appellant had paid the service tax on 60% of the value of the service so rendered and made the refund claim on 5.4.2016. The refund application was decided by the Adjudicating Authority on merits that the refund claim was filed incorrectly as the assessee themselves were liable to pay service tax on 50% of the total value of the billing amount. As the assessee was held to be himself liable to pay duty for which the refund is claimed, the refund claim was held to be unsustainable. On the same analogy, the impugned order has been passed on 3.5.2018. After the said two orders, the decision of the Apex Court in ITC Ltd. was pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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