PREMIER AGENCIES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE appellants are engaged in providing the Business Auxiliary service to M/s Hutch Ltd. Prior to 31.12.2006, they were getting commission from M/s Hutch Ltd. and were paying service tax on such commission. From 1.1.2007, the company changed its policy and the appellants were not getting commission else they were performing the sales activities. The appellant's accountant as a matter of routine practice paid the service tax and submitted the ST -3 returns for the period from October 06 to March, 08. The appellants filed refund claim, which was rejected by the Assistant Commissioner applying the ratio of decision of the Hon'ble Apex Court in the case of CCE, Kanpur v. Flock (India) Pvt. Ltd. : 2000 (120) ELT 285 (SC). Aggrieved from the same the appellants filed an appeal before the Commissioner (Appeals), who also rejected their appeal. Aggrieved from the same, the appellants are before me.

(2.) THE issue involved in this case is whether the appellants can file the refund claim without challenging the assessment in the facts and circumstances of the case.

(3.) ON the other hand, the learned DR submitted that it is a case of self assessment and the same has been accepted by the department, hence without challenging the same, the refund claim cannot be entertained and the lower authorities have rightly followed the Flock (India) Ltd. decision and the impugned order is sustainable.