2012 (12) TMI 317 - AT - Service Tax

Refund - partially rejected on the ground that assessee has not been able to produce any proof of receipt of export proceeds - instead of filing appeal, filed a fresh claim before the adjudicating authority placing on record, proof showing receipt of export proceedings - held that - Once the appellant has allowed the order of rejection of refund claim to attain finality, there is no provision under the law to revive the same issue by filing a fresh letter - lower authorities have rightly rejected the appellants claim - appellant cannot revive the same very issue by filing a fresh letter subsequently - claim which already stands rejected cannot be allowed to be revived by way of filing of fresh claim - Return of subsequent refund claim by the Assistant Commissioner has no effect on the facts of the case inasmuch as it was for the appellant to challenge the earlier order - Non-challenge to the earlier order cannot be held to be on account of late return of the subsequent refund claim - no infirmity in the impugned order of Com (A) - appeal filed by appellant is rejected.

Issues:
1. Validity of rebate claim under notification No. 12/2005 and Rule 5 of Export of Services Rules, 2005.
2. Rejection of refund claim by Assistant Commissioner due to lack of proof of export proceeds receipt.
3. Filing of a fresh refund claim after the rejection of the initial claim.
4. Applicability of Section 85(3) of the Finance Act regarding the time limit for filing appeals.
5. Revival of a rejected claim through a subsequent fresh claim.
6. Effect of the late return of the subsequent refund claim by the Assistant Commissioner.

Analysis:
1. The appellant filed a rebate claim under notification No. 12/2005 and Rule 5 of Export of Services Rules, 2005. The Assistant Commissioner sanctioned a partial refund but rejected a portion due to the absence of proof of receipt of export proceeds.

2. Subsequently, the appellant attempted to refile the refund claim, claiming to have obtained the necessary proof. However, the Assistant Commissioner refused to entertain the fresh claim, citing the finality of the earlier rejection and the absence of an appeal against it.

3. The appellant argued that they believed they could revive the claim upon obtaining the required documentation, leading them to file a fresh claim instead of appealing the initial rejection. The Commissioner (Appeals) upheld the rejection, emphasizing the failure to appeal within the prescribed time limit under Section 85(3) of the Finance Act.

4. The Tribunal concurred with the lower authorities, noting that the appellant allowed the initial rejection to attain finality by not appealing it. Filing a fresh claim after the order had become final was deemed impermissible, as the appellant should have challenged the original decision through an appeal.

5. The Tribunal highlighted that the Assistant Commissioner's delay in returning the subsequent refund claim did not affect the finality of the earlier rejection. The appellant's failure to challenge the initial decision within the specified timeframe precluded them from reviving the rejected claim through a fresh filing.

6. Ultimately, the Tribunal found no fault in the decision of the Commissioner (Appeals) and dismissed the appellant's appeal, emphasizing the importance of timely appeals and the inability to resurrect a rejected claim through subsequent filings.

This detailed analysis of the judgment provides a comprehensive understanding of the issues raised and the Tribunal's reasoning behind the decision.

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