ORDER
S.L. Peeran, Member (J)
1. This Revenue’s appeal is against the Order-in-Appeal No. 24/2004 dated 27.02.2004 by which the assessee’s refund application has been allowed.
2. The assesses had paid service tax under protest with regard to the activity of the training provided to their customers. The Revenue proceeded to bring the activity under the category of Consulting Engineer. The assessee’s contention is that they have not rendered any advise, consultancy or technical assistance and hence they have not rendered any service under the category of Consulting Engineer. The assessee filed refund application as the service tax has been paid under protest. The Revenue has rejected the same. However, the Commissioner (Appeals) after a detailed consideration of the matter decided the issue in the assessee’s favour. The Revenue is aggrieved with this order.
2. The learned DR submits that the assesee has not filed any appeal. Therefore in terms of the Apex Court judgment rendered in the case of Priya Blue Inds. Ltd. v. CC reported in 2004 (64) RLT 321 (S.C.), the refund cannot be allowed.
3. This is contested by the learned Advocate on the ground that the duty had been paid under protest. Therefore the question of challenging the assessment by filing an appeal does not arise. Hence they are entitled for refund. This point has been examined by this Bench in the case of Jindal Vijayanagar Steels Ltd. v. CC reported in 2006 (74) RLT 937 (T-Bang.). On a detailed examination of all the judgments, the Tribunal has distinguished the judgment in the case of Priya Blue Industries Ltd. The Tribunal has followed the ruling of the Apex Court rendered in the case of Karnataka Power Corporation Ltd. v. CC wherein it has been laid down that the duty paid under protest to be eligible for refund. The learned Counsel relies on ratio of the following rulings:
(i) IVL India Pvt Ltd. v. CCE, Thiruvananthapuram 2006 (4) S.T.R. 151 (Tri. – Bang.)
(ii) CC, Mumbai v. H.E.G. Ltd. 2006 (74) RLT 427 (CESTAT-Mum.) wherein the Revenue’s appeal has been rejected on the very issue.
4. We have carefully considered the submissions made by both the sides. We notice that the very issue has already been decided in the case of Jindal Vijayanagar Steel Ltd. and in the case of CC v. HEG Ltd. (supra). The point raised by the Revenue has already been dealt with in the case of Jindal Vijayanagar Steel Ltd.
Therefore we do not find any merit in the Revenue’s appeal and the same is rejected.
(Pronounced and dictated in the open court)