M/S. Hotel & Allied Trades Pvt Ltd vs Commissioner Of Central Excise, ...
- CitationAppeal No. 179/2006-ST dated 17/11/2006 passed by the Commissioner of Customs & Central Exc
Ratio decidendi
The rule this decision rests on
A refund claim cannot be entertained where the assessments on the returns filed by the assessee have been finalised by extending the benefit of the notification the assessee itself claimed, those assessments have not been challenged by the assessee, and there is no provision permitting the assessment to be reopened for review; in such circumstances the claim for refund under a different, more beneficial notification is rejected on the authority of the Supreme Court decisions in Flock (India) and Priya Blue Industries.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. 179/2006-ST dated 17/11/2006 passed by the Commissioner of Customs & Central Excise (Appeals), Cochin.]
For approval and signature:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK K ARYA, TECHNICAL MEMBER
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes
M/s. HOTEL & ALLIED TRADES PVT LTD CASINO HOTEL, WILLINGTON ISLAND, COCHIN 682 003. Appellant(s)
Versus
Commissioner of Central Excise, Customs and Service Tax C R BUILDING, I S PRESS ROAD, ERNAKULAM, COCHIN, - 682018. KERALA Respondent(s)
Appearance:
Mr. Arjun, Advocate JOSEPH & KURIYAN 42/2260, PROVIDENCE ROAD KOCHIN - 682018 KERALA For the Appellant
Mr. K. T. Pakshi Rajan, Asst. Commissioner (AR) For the Respondent
Date of Hearing: 23/09/2015
Date of Decision: 23/09/2015
CORAM:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK K ARYA, TECHNICAL MEMBER
Final Order No. 21991 / 2015
Per : ARCHANA WADHWA
After hearing both the sides, we find that the appellant, who is engaged in providing outdoor catering services to the airlines filed a refund claim of Rs.1,28,484/- on the ground that though they have availed the benefit of exemption Notification No.20/2004-ST dated 10.9.2004, but they were entitled to the benefit of another more beneficial Notification No.12/2003-ST.
2. Lower authorities rejected the refund claim on the ground that appellant has already filed the returns which has been finally assessed by extending the benefit of the claimed Notification No.20/2004-ST dated 10.9.2004 and there is no provision to reopen the assessment, for a review. For such final findings, the lower authorities relied upon the Honble Supreme Courts decision in the case of CCE, Kanpur vs. Flock (India) Pvt. Ltd.: 2000 (120) E.L.T. 285 (S.C.) as also in the case of Priya Blue Industries Ltd. vs. CC: 2004 (172) E.L.T. 145 (SC).
3. Inasmuch as the assessments were finalized and were not put to challenge by the appellant, we find no infirmity in the impugned orders of the authorities below in rejecting the refund claim. Accordingly, the appeal is also rejected. (Order pronounced in open court)
ASHOK K ARYA TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER
rv 3
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