2023 (6) TMI 244 - AT - Service Tax

Seeking withdrawal of appeal - Refund of unutilized cenvat credit of service tax paid - input services received and entirely used in the export of ITS Services under Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 27/2012-CE (NT) dated 18.06.2012 - Rejection on the ground that since refund includes rebate of duty, the rebate claims have to be filed within a period of one year as per under Section 11B of Central Excise Act, 1944 read with Section 83 of Finance Act, 1994. HELD THAT - From the bare reading of provision of first proviso to Section 86(1) of Finance Act, 1994, it appeared that the appeal in respect of the orders passed by the FAA shall lie before the Central Government (Revisional Authority) in the form of a revision application and not before the Hon ble Appellate Tribunal. However, appellant stated that they have noted the Tribunal s order in the case of AXA BUSINESS SERVICES PVT. LTD. VERSUS COMMISSIONER OF CENTRAL TAX, BANGALORE NORTH 2019 (7) TMI 398 - CESTAT BANGALORE wherein similar issue on rebate of Swachh Bharat Cess has been decided in favour of the assessee In view of the above, the appellant states that there is ambiguity as to whether the order passed by the Commissioner (Appeals) is appealable to this Tribunal or to the Central Government (Revisional Authority). The appellant submitted that the revision applications were filed subsequent to the filing of the above 6(six) appeals before this Tribunal as a precautionary measure owing to the ambiguity regarding correct jurisdiction for the second appeal in the matter. The appellant has prayed to condone the filing of second appeal before two different appellate forums and to allow them to withdraw the above appeals filed before this Tribunal. The request of the appellant for the withdrawal of the appeals is allowed and the 6(six) appeals filed are dismissed as withdrawn.

Summary

Issues Involved:
The issues involved in the judgment are the rejection of rebate claims on the grounds of filing timeline and the ambiguity regarding the correct appellate forum for appeals related to rebate of service tax on input services.

Rejection of Rebate Claims:
The appellant, engaged in export of software development services, regularly claimed refund of unutilized cenvat credit of service tax paid on input services used in export. Separate applications for rebate of Swachh Bharath Cess (SBC) were filed, but the Assistant Commissioner rejected the applications citing the need to file rebate claims within one year under Section 11B of Central Excise Act, 1944. Appeals against these rejections were also dismissed by the Commissioner (Appeals), leading to the filing of six appeals before the Tribunal.

Ambiguity on Appellate Forum:
The appellant, after receiving a rejection from the Revisional Authority, sought withdrawal of the appeals before the Tribunal, citing ambiguity on whether the orders passed by the Commissioner (Appeals) should be appealed to the Tribunal or the Central Government (Revisional Authority). The appellant referred to a Tribunal order in a similar case and highlighted the confusion regarding the correct jurisdiction for the second appeal. The appellant filed revision applications as a precautionary measure due to this uncertainty and requested to withdraw the appeals before the Tribunal.

Final Decision:
Considering the circumstances and the appellant's request, the Tribunal allowed the withdrawal of the six appeals filed and dismissed them as withdrawn. The order was pronounced in open court on 05/06/2023.