2018 (1) TMI 1389 – CESTAT ALLAHABAD – TMI – Refund of Service tax wrongly paid – rejection of refund claim on the ground that the appellant was not registered with the Service Tax Department – revenue also placed reliance in the case of Collector of Central Excise, Kanpur Versus Flock (India) Pvt. Ltd. [2000 (8) TMI 88 – SUPREME COURT OF INDIA], wherein it had been held that the assessment cannot be challenged by way of subsequent claim of refund.
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Held that:- There was no appealable order in the facts of the present case and as such the ratio of the ruling of the Apex Court in the case of Flock (India) Pvt. Ltd. [2000 (8) TMI 88 – SUPREME COURT OF INDIA] is not applicable and have been wrongly relied upon by the ld. Commissioner (Appeals).
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The appellant is entitled to refund of Service Tax, wrongly paid through, M/s R. K. Agencies, Lucknow – appeal allowed – decided in favor of appellant. – APPEAL No. ST/70745/2017-ST[SM] – A/72277/2018-SM[BR] – Dated:- 31-1-2018 – Mr. An
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K. Agencies deposited the tax with the Government Exchequer and disclosed the said turnover in their ST-3 Returns. Thereafter, appellant came to understand that Service Tax was not payable on the said transaction i.e. services availed from the said agent – M/s R. K. Agencies by virtue of Section 66D Clause (d) which provides – services relating to agriculture or agricultural produce by way of – agricultural operations directly related to production of any agricultural produce including cultivation, harvesting, threshing, plant production or testing etc. are not liable to Service Tax as it falls under the negative list of services with effect from 1st July, 2012. Further sub-clause (vii) clause (d) of Section 66D specifically excludes services by a commission agent for sale or purchase of agricultural produce. Accordingly, the appellant applied for refund of the Service Tax wrongly paid, on 12th March, 2014. The said refund application was returned by the Department on 31st March, 2014
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tood finalized, ipso- facto. 4. It is also observed in the impugned order – in view of the ruling of Hon ble Supreme Court in the case of Collector of Central Excise, Kanpur Versus Flock (India) Pvt. Ltd. 2000 (120) E.L.T. 285 (S.C.), wherein it had been held that the assessment cannot be challenged by way of subsequent claim of refund. 5. Being aggrieved the appellant preferred appeal before ld. Commissioner (Appeals) who vide the impugned order was pleased to observe that the appellant is entitled to file the refund claim, although they are not a registered-assessee with the Service Tax Department, the refund claim is not hit by limitation under Section 11B of the Central Excise Act. However, he was pleased to observe that the ratio of the judgment of the case of Flock (India) Pvt. Ltd. (supra) is squarely applicable and, accordingly, was pleased to reject the refund claim. 6. Aggrieved by the said order, the appellant is before this Tribunal. The learned counsel for the appellant st
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