2016 (11) TMI 832 - AT - Service Tax

Maintainability of appeal - fee for filing appeal not paid - rejection of Rebate claim - jurisdiction of Tribunal as per proviso (b) to Section 35B(i) of Central Excise Act - Held that - though as per the provision of first proviso to Section 35B(i), the order relates to rebate of duty paid on goods exported are not appealable to this Tribunal and in such matter revision application lies before the Revisionary Authority, Government of India in terms of Section 35EE. However in case of service tax there is a specific provision made under Section 86 - From the above Section 86 there is explicit provision by which the order relating to grant of rebate of service tax on input, service tax or rebate of duty paid on input have been carve out for appeal before this Tribunal and in such cases the assessee is required to file revisionary application under Section 35EE. However, in the said provision, the rebate of service tax paid on output service has not been carved out therefore present appeal on the issue of rebate of service tax paid on output service exported out of India is maintainable before this Tribunal. Section 35 EE is applicable but only for the cases related to rebate of service tax paid on input service or duty paid on inputs which were used in the export of services. Since there is independent provision under Section 86 in such cases Section 35 B need not to be resorted. Therefore the present appeals are maintainable. As regard the fees for filing the appeal - Held that - in case of rebate or refund matters, payment of fees is not required for filing the appeal. Appeal allowed.

Summary

Issues:
1. Maintainability of appeals due to non-payment of fee.
2. Jurisdiction of the Tribunal regarding appeals against orders passed by the Commissioner(Appeals) rejecting rebate claims.

Analysis:
1. The first issue raised was the non-payment of fees for filing the appeal. The appellant argued that since the issue pertained to a rebate claim of service tax, and there was no provision for payment of fees in case of refund/rebate, no fees were applicable in the present case. The appellant relied on judgments supporting this argument, emphasizing that payment of fees is not required for filing an appeal in rebate or refund matters. The Tribunal agreed with this argument based on the precedent set by the Larger Bench and the Allahabad High Court, stating that the appeal was maintainable without the payment of fees.

2. The second issue involved the jurisdiction of the Tribunal regarding appeals against orders passed by the Commissioner(Appeals) rejecting rebate claims. The appellant contended that the issue in question related to rebate claims on output services exported out of India, which was not carved out for filing appeals under Section 86. The appellant cited relevant judgments to support this argument. On the other hand, the Revenue argued that as per Section 35EE, revision applications lie before the revisionary authority for cases falling under the first proviso to subsection (1) of Section 35B. The Revenue relied on a specific case to support their stance. However, the Tribunal analyzed the provisions of Section 86 and Section 35EE, noting that Section 86 explicitly carved out orders related to rebate of service tax on input or input service for appeal before the Tribunal. Since the issue in the present case pertained to rebate of service tax paid on output service exported, the appeal was deemed maintainable before the Tribunal. The Tribunal distinguished the case cited by the Revenue, emphasizing that it involved rebate of service tax on input or input service, which was not applicable in the present context. Consequently, the Tribunal ruled that the appeals were maintainable based on the provisions of Section 86 and Section 35EE, and not Section 35B. The Tribunal directed the registry to list the matters for further proceedings.