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2018 (2) TMI 1841 - CGOVT - Service TaxMaintainability of revision application - rejection on the ground of time bar - communication/service of order - change in address - Jurisdiction - revisionary power under Section 86 of the Finance Act, 1994 - Held that - As per Section 83 of Finance Act, 1994, read with Section 35EE of the Central Excise Act, 1944, a Revision Application is to be accompanied by a fee of ₹ 1,000/- where the amount of Service Tax levied by any officer is more than ₹ 1.00 lakh. This requirement of payment of fee before or at the time of filing the application is mandatory and no relaxation in this regard is provided under the aforesaid provision or any other Section - Thus if any application is not accompanied by the specified fee, such application cannot be considered as proper Revision Application by virtue of the above-mentioned provision. Since in this case the fee of ₹ 1,000/- has been paid only on 21-4-2014, the proper Revision Application in this case can be considered to have been filed only on 21-4-2014 by which this application is time-barred as the Revision Application can be filed only within 3 months from the date of communication of the Commissioner (Appeals) order as per sub-section (2) of Section 35EE of Central Excise Act, 1944 which was received in this case on 5-9-2013. Jurisdiction - Held that - It is also evident from the Revision Application and orders of lower authorities that the issue involved in the present case is regarding refund of accumulated Cenvat credit under Rule 5 of Cenvat Credit Rules, 2005, read with Notification No. 12/2005, dated 19-4-2005, for which the Government does not have revisionary power under Section 86 of the Finance Act, 1994, read with Section 35EE of Central Excise Act - the Revision Application has been filed wrongly before the Government. Revision Application is rejected as time-barred and not maintainable before the Government.
Issues: Time-barred appeal, delay in filing Revision Application, payment of fee, jurisdiction of revisionary power
Time-barred appeal: The Revision Application was filed by M/s. NT Back Office Services Pvt. Ltd. against the rejection of their appeal by the Commissioner (Appeals) as time-barred. The applicant claimed that the delay was due to not receiving the order in time because of a change in their address. However, upon examination, it was found that the appeal was filed after a significant delay of more than three years. The Commissioner (Appeals) had discussed the delivery of the order by hand on 19-5-2010 and the filing of the appeal on 22-5-2013. The applicant failed to provide any evidence to counter these facts, leading to the conclusion that the appeal was indeed filed after an enormous delay, which could not be condoned. Delay in filing Revision Application: Furthermore, it was observed that the Revision Application itself was filed after a delay of 79 days from the receipt of the Commissioner (Appeals) order. The applicant sought condonation of this delay, claiming that they had mistakenly filed an appeal before the CESTAT. However, even this delayed Revision Application was not accompanied by the required fee of ?1,000, which was only paid on 21-4-2014. As per the Finance Act, 1994, and the Central Excise Act, 1944, the fee is mandatory at the time of filing, and failure to do so renders the application improper. Consequently, the Revision Application was considered to have been filed only on 21-4-2014, rendering it time-barred. Payment of fee: The requirement of payment of a fee of ?1,000 for a Revision Application is mandated by Section 83 of the Finance Act, 1994, read with Section 35EE of the Central Excise Act, 1944, when the amount of Service Tax levied exceeds ?1.00 lakh. The fee must be paid before or at the time of filing the application, with no provision for relaxation. As the fee in this case was paid after the specified date, the application was deemed time-barred. Jurisdiction of revisionary power: The issue involved in the case pertained to the refund of accumulated Cenvat credit under Rule 5 of Cenvat Credit Rules, 2005, which falls outside the revisionary power of the Government under Section 86 of the Finance Act, 1994, read with Section 35EE of the Central Excise Act. The Government's revisionary power is limited to orders of the Commissioner (Appeals) related to the rebate of service tax against exported services only. Therefore, the Revision Application was incorrectly filed before the Government, leading to its rejection as time-barred and not maintainable. In conclusion, the judgment rejected the Revision Application by M/s. NT Back Office Services Pvt. Ltd. as time-barred and not within the jurisdiction of the Government's revisionary power. The delay in filing both the appeal and the Revision Application, coupled with the failure to pay the requisite fee on time, led to the dismissal of the application. The legal provisions regarding time limits, fee payments, and the scope of revisionary powers were meticulously analyzed to arrive at this decision.
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