2018 (3) TMI 1722 - CGOVT - Service Tax

Refund of service tax paid - export of rice - rejection on the ground that the difference between the amount of rebate under the procedure specified in Para 2 and Para 3 is lesser than 20% of the rebate admissible under the procedure specified in Para 2 of N/N. 41/2012- S.T., dated 29-6-2012 - Held that - On mere reading of the N/N. 41/2012-S.T., it is evident that an option is given to the claimant either to claim rebate of service tax under Para 2 or Para 3 of the said notification. The rebate claim under Para 2 is required to be filed with the concerned Custom House along with shipping bills as per rates specified for different items in the Schedule to the above notification. There is no dispute that in the instant case the rebate claims are not maintainable under Para 3 as the difference between the amount of rebate claimed under Para 3 and the amount of rebate which could be admissible under Para 2 is undoubtedly below 20%. This fact has not been questioned by the applicant also in their revision application. Rebate of service tax under Para 2 can be claimed only from Customs authorities after complying with the procedure laid down under the above notification and rebate of service tax under Para 2 cannot be granted by the Central Excise authorities as customs authorities have only been entrusted under Notification No. 41/2012-S.T. to disburse rebate of service tax as per rates specified in the Schedule a like drawback of duty of customs. Since this restriction is specified in the notification itself, it cannot be relaxed even when the rejected amount of rebate of service tax is lesser than the amount admissible under Para 2 of the notification, as claimed by the applicant. The Government finds that Commissioner (Appeals) has rightly set aside the applicant s appeal before him and no interference from the Government is warranted - revision application rejected.

Issues:
1. Refund claims under Notification No. 41/2012-S.T.
2. Rejection of rebate claim by Assistant Commissioner.
3. Appeal rejection by Commissioner (Appeals).
4. Revision application before the Government.
5. Allowance of rebate under Para 2 of Notification.
6. Dispute over rebate claims under Para 3.
7. Claimant's choice between Para 2 and Para 3.
8. Legal restrictions on granting rebate under Para 2.

1. Refund claims under Notification No. 41/2012-S.T.: The applicant filed two refund claims under Notification No. 41/2012-S.T. for Service Tax paid on services used in the export of rice. The Assistant Commissioner sanctioned a partial rebate and rejected a portion of the claim, leading to subsequent appeals and a revision application.

2. Rejection of rebate claim by Assistant Commissioner: The Assistant Commissioner rejected a part of the refund claim, specifically &8377; 2,92,653, stating that the difference between the rebate amounts under different procedures specified in the notification was less than 20%. This rejection formed the basis for further appeals and the revision application.

3. Appeal rejection by Commissioner (Appeals): The Commissioner (Appeals) upheld the rejection of the claim for &8377; 1,79,962, leading to the filing of a revision application before the Government to challenge the decision based on the grounds that the rebate claim under Para 3 was less than the amount admissible under Para 2 of the notification.

4. Revision application before the Government: The revision application was filed before the Government challenging the rejection of the rebate claim under Para 3 and seeking allowance of the rebate under Para 2 of the Notification No. 41/2012-S.T. The applicant argued that if the claims were not maintainable under Para 3, they should be allowed under Para 2.

5. Allowance of rebate under Para 2 of Notification: The main issue before the Government was whether the rebate of service tax could be granted under Para 2 of the notification after being rejected by the Assistant Commissioner and the Commissioner (Appeals). The Government analyzed the provisions of the notification to determine the claimant's options and the procedures for claiming rebates under different paras.

6. Dispute over rebate claims under Para 3: It was established that the rebate claims were not maintainable under Para 3 due to the difference between the claimed amount under Para 3 and the admissible amount under Para 2 being less than 20%. The applicant did not contest this fact in the revision application.

7. Claimant's choice between Para 2 and Para 3: The notification provided the claimant with the option to choose between claiming rebate under Para 2 or Para 3, each having different procedures and requirements. The claimant could select the most beneficial option based on the amount and convenience.

8. Legal restrictions on granting rebate under Para 2: The Government concluded that rebate of service tax under Para 2 could only be claimed from Customs authorities as per the notification. The Central Excise authorities were not empowered to grant rebates under Para 2, and the legal restrictions specified in the notification could not be relaxed, even if the rejected amount was less than the admissible amount under Para 2. Consequently, the Government rejected the revision application, upholding the decision of the Commissioner (Appeals).

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