2012 (6) TMI 332 - AT - Service Tax

Rebate claim - rejection on the ground that declaration, required under notification No. 12/2005 was not filed - rejection of portion of the claim on the ground of rebate claim being filed beyond the time limit prescribed u/s 11B - Held that - Purpose of filing declaration is to prevent evasion of duty by receipt of rebate. Tribunal in case of Wipro BPO Solutions Limited (2011 (10) TMI 261 (Tri))took a view that even though non filing of declaration is only procedural, rebate will not be admissible. Hence, rejection of the claim on this ground has to be upheld. Applicability of Section 11B of Central Excise Act, 1944 - Held that - Claims under notification No. 12/2005-ST also are required to be considered as per the provisions of Section 11B, made applicable to service tax matters vide Section 83 of Finance Act, 1994. In this case the claim is for rebate of duty paid on services utilized in export of services and it is similar to rebate claim which are granted under Rule 18 of Central Excise Rules, 2002, in which case, the time limit u/s 11B would be applicable - Decided against the assessee.

Summary

Issues involved:
- Additional grounds for rebate claim not governed by Section 11B
- Rejection based on procedural omissions
- Applicability of Section 11B to rebate claims
- Claim considered as refund of accumulated credit under Rule 5 of Cenvat Credit Rules

Analysis:

Issue 1: Additional grounds for rebate claim not governed by Section 11B
In both appeals, the appellant submitted additional grounds stating that the rebate claim made by them is not governed by the provisions of Section 11B. The Tribunal accepted and considered these additional grounds as they were deemed relevant to the case. The Chartered Accountant representing the appellant argued that the rebate claims were filed under Notification No. 12/2005. The rejection of the claim based on procedural omissions was challenged, citing previous decisions. However, the Tribunal emphasized that the failure to file the required declaration under the notification would lead to the denial of the claim, following a specific decision related to the issue at hand. Therefore, the rejection of the claim on this ground was upheld.

Issue 2: Rejection based on procedural omissions
The Chartered Accountant argued that the rejection of the claim due to the failure to file the necessary declaration as per Notification No. 12/2005 was incorrect. The appellant's representative contended that substantive rights should not be denied due to procedural lapses. Despite various arguments and citations of different decisions, the Tribunal held that the failure to comply with the declaration requirement under the notification led to the rejection of the claim. The Tribunal stressed the importance of following a specific decision directly related to the issue at hand and upheld the rejection based on procedural grounds.

Issue 3: Applicability of Section 11B to rebate claims
The Chartered Accountant further argued that the provisions of Section 11B should not be applicable, and the denial of the rebate claim based on the delay in filing was incorrect. The Tribunal considered various submissions and decisions cited by both parties. Ultimately, the Tribunal held that the provisions of Section 11B would be applicable to rebate claims, especially in cases similar to the one at hand involving duty paid on services utilized in export. The Tribunal emphasized the need to follow recent decisions by High Courts, which supported the application of Section 11B to such matters. Therefore, the lower authorities' application of Section 11B to the case was upheld.

Issue 4: Claim considered as refund of accumulated credit under Rule 5 of Cenvat Credit Rules
An alternative submission was made to consider the claim as a refund of accumulated credit under Rule 5 of Cenvat Credit Rules, 2004. However, the Tribunal rejected this submission, stating that the original claim was made under Notification No. 12/2005, which has different conditions and purposes compared to Rule 5. The Tribunal highlighted the differing conditions regarding cenvat credit under the notification and Rule 5, indicating that the claims should not be considered under Rule 5 in this scenario. As a result, the appeals filed by the appellants were rejected based on these considerations.