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2018 (12) TMI 1800 - CGOVT - Service TaxRebate of Service Tax - export of services - case of respondent is that service tax is not leviable on export of services under Section 66B read with Section 66C of the Finance Act, 1994 and any amount collected without authority of law cannot be retained by the Government in terms of Article 265 of the Constitution of India - Section 11B of the Central Excise Act - HELD THAT - The Commissioner (Appeals) has allowed the respondent s appeal vide aforesaid OIA by accepting the fact that the respondent was not required to pay any service tax on the exported services and the refund of service tax wrongly paid on the exported services is admissible under Section 11B of the Central Excise Act. This legal postulation that the respondent was not required to pay any service tax on the exported services is not questioned by the applicant also in their revision application. Instead the applicant has only stressed that no rebate of service tax could be granted from 1-7-2012 as no Notification providing for rebate of service tax is available from the said date even when Commissioner (Appeals) has not allowed any rebate of service tax. The Order-in-Appeal is manifestly relating to refund of service tax and not the rebate of service tax which can be granted only if a Notification issued by Central Government authorizes in respect of export of services. But the applicant has still filed the revision application for the reasons discussed in para (2) by considering the matter relating to rebate of tax and ignoring the truth that the Commissioner has allowed refund of excess service tax paid in this matter under Section 11B of the Central Excise Act. Whereas Section 86(2) of the Finance Act, read with Section 35EE of the Central Excise Act, 1944, unambiguously stipulate that the revision application can be filed before the Central Government against the Order of the Commissioner (Appeals) if the Order relates to grant of rebate of service tax on input or rebate of duty paid on inputs used in providing exported services - But there is no legal provision for filing the revision application against the Order-in-Appeal which is relating to refund of service tax as is in the present case. The Government does not have any legal authority to deal with the Commissioner (Appeals) s above referred Order which is clearly relating to refund of service tax and not the rebate of service tax on input services or rebate of duty paid on inputs as is envisaged in aforementioned Section 86(2) of the Finance Act - the Government reject the revision application as non-maintainable due to lack of jurisdiction.
Issues:
Jurisdiction of Central Government to deal with Commissioner (Appeals)'s order relating to refund of service tax. Analysis: The case involves a Revision Application filed by the Commissioner of Central Excise against the Order-in-Appeal allowing refund of service tax paid on exported services to a company. The Revision Application contests the availability of rebate of service tax post-July 2012, citing absence of relevant Notification and claiming that Rule 6A does not cover rebate of output taxes. The respondent argues that they were not required to pay service tax on exported services and are eligible for refund under relevant legal provisions. Despite scheduled hearings, the applicant did not participate, indicating disinterest. The Government notes that the Commissioner (Appeals) allowed the refund based on the fact that the respondent was not liable to pay service tax on exported services, a point not challenged by the applicant. The Government highlights that the Order-in-Appeal is about refund of service tax, not rebate, and points out the legal provisions governing revision applications. It clarifies that the revision application can only be filed against orders related to grant of rebate of service tax on input or duty paid on inputs for exported services, not for orders related to refund of service tax. Consequently, the Government rejects the revision application as non-maintainable due to lack of jurisdiction.
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