ORDER
M.V. Ravindran, Member (J)
1. This appeal is directed against order in appeal dated 16-11-2005 in appeal No. ST/42/06 and against order in appeal dated 9-9-2005 in appeal No. ST/213/06. Since the issue involved in both the appeals is identical, they are disposed by a common order.
2. The issue involved in this case is regarding the rejection of refund claim filed by the appellant, by the lower authority in respect of service tax amount paid by them on the receipt of the services from goods transport operators during the period 16-11-1997 to 2-5-1998. The learned consultant appearing for the appellant submits that they are not required to pay the service tax demanded from them in respect of the services received from goods transport operators as the Provisions of Section 73 of Finance Act, 1994 are not invokable against them. It is his submission that they paid the service tax under the coercion of the departmental officers.
3. Learned DR submits that there is no coercion but only a request letter from the Superintendent directing the appellant to deposit the service tax.
4. Considered the submissions made by both sides and perused records. I find that appellants were not issued show cause notice for recovery of service tax Under Section 73 by any of the lower authority. The appellants have paid the service tax on their own to the Government. Since, the appellants have paid the service tax on their own and there cannot be invocation of Section 73 on the Finance Act against them for the recovery of the service tax. The question of appellant disputing the same does not arise.
5. I find that the Commissioner (Appeals) in his order in appeal has held as under:-
I further find that the case of L.H. Sugar Factories Ltd. and Ors. is not applicable in this appeal in as much as in cited case, the matter is relating to issuance of show cause notice Under Section 73 of the Finance Act, 1994 was challenged, whereas in the instant appeal appellant claimed refund after deposition of service tax and show cause notice was issued to the appellant hence there is no matter of not following of the judicial discipline by the Adjudicating Authority. I do not find any infirmity in the impugned order in this respect.
6. To my mind, the law, as culled out by the Commissioner (Appeals) is correct and he has correctly rejected the appeal filed by the appellant.
7. Accordingly, I do not find any reason for interference in the impugned order. Appeals are dismissed.
(Dictated and pronounced in the open court)