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2018 (5) TMI 1566 - AT - Service TaxRebate claims - service tax and education cess paid on input services which are said to have been used in providing the ITSS - N/N. 12/2005-ST dt. 01/01/2005 under Rule 5 of Export of Service Rules 2005 - rejection on the ground that the appellants have not complied with the conditions as prescribed in notification - Held that - though the appellant has submitted that they in fact wanted to file the refund claims under Notification No.5/2006 but inadvertently they have used the wrong form of rebate. But this submission is not correct and the original order as well as the first appellate order in the first round of litigation has also considered it as a rebate claim. It is not permitted to treat the rebate claim as refund claim under Rule 5 of CENVAT Credit Rules read with N/N. 5/2006 - in view of the amendment carried out by Finance Act 2015 dt. 14/05/2015 vide which the jurisdiction to entertain such appeal has been ousted. The present appeals are not maintainable before this Tribunal and the appeal lies before the Revisionary Authority in accordance with the provisions of Section 35EE of the Central Excise Act 1944 - appeal dismissed being not maintainable.
Issues:
Appeal against rejection of rebate claims under Notification No. 12/2005-ST for service tax and education cess paid on input services used in providing Information Technology Software Services (ITSS) and Business Auxiliary Service (BAS). Analysis: 1. Background: The appellant filed five rebate claims under Notification No. 12/2005-ST for service tax and education cess paid on input services used in providing ITSS. The claims were rejected by the Assistant Commissioner, leading to appeals before the Commissioner(Appeals). 2. Contentions: The appellant argued that they inadvertently filed rebate claims instead of refund applications under Rule 5 of the CENVAT Credit Rules. They maintained compliance with Circular No. 120/01/2010-ST, submitted Chartered Accountant certificates, and intended to claim refunds, not rebates. 3. Defense: The respondent contended that the appellant consistently filed rebate claims, as mentioned in show-cause notices and documents. The original authority and Commissioner(Appeals) rejected the claims due to non-compliance with Notification No. 12/2005-ST and Rule 5 of Export of Service Rules, 2004. 4. Judgment: The Tribunal found that the impugned order correctly rejected the appeals based on non-compliance with Notification No. 12/2005-ST. Despite the appellant's argument of intending to file refund claims, the orders considered and treated the claims as rebates. The Tribunal noted the jurisdictional issue post-amendment by the Finance Act, 2015, which ousted the Tribunal's jurisdiction to entertain such appeals. 5. Conclusion: The Tribunal dismissed the appeals, stating they were not maintainable before the Tribunal due to the specific amendment in Section 86 of the Finance Act, 1994. The appeals were deemed to fall under the jurisdiction of the Revisionary Authority as per Section 35EE of the Central Excise Act, 1944. In summary, the Tribunal upheld the rejection of rebate claims under Notification No. 12/2005-ST, emphasizing non-compliance with prescribed conditions and the jurisdictional shift post-amendment. The appellant's argument of intending to claim refunds was not accepted, leading to the dismissal of the appeals for being outside the Tribunal's jurisdiction.
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