2014 (9) TMI 382 - AT - Service Tax

Jurisdiction of tribunal to entertain appeal relating to rebate dispute arising under Finance Act, 1994 - claim of rebate on input service used in export of service - anomaly in charging filing fees by the Registry in respect of appeal involving refund - Held that - although the amendment to Section 83 of Finance Act has been made w.e.f. 28-5-2012 incorporating Section 35EE therein, that does not confer right on the appellant to say that this incorporation having been a prospective legislation, Tribunal shall entertain Rebate claim appeals. Even before incorporation, rebate claim by virtue of first proviso to Section 35 of Central Excise Act, 1944, was out of Jurisdiction of Tribunal and well settled principle is that procedural law appearing in statute book as on the date of seeking redressal shall apply as declaratory legislation and two appeals filed under aforesaid diary numbers before Tribunal on 10-12-2012 are beyond Jurisdiction of Tribunal to be entertained. - Decided against the assessee. So far as changeability of appeal fee is concerned, we do not express any opinion at this stage although there was request from the Bar to look into this aspect and pass order. Once we hold that the Tribunal has no jurisdiction to entertain a revisionary matter, we are not inclined to decide the appeal fees payable on refund appeal which shall be mere academic and shall be prejudging the issue prematurely. - Decided against the assessee.

Issues Involved:
1. Jurisdiction of the Tribunal to entertain rebate claim appeals.
2. Interpretation and application of Section 83 of the Finance Act, 1994, and Section 35EE of the Central Excise Act, 1944.
3. Chargeability of appeal fees in refund appeals.

Detailed Analysis:

1. Jurisdiction of the Tribunal to entertain rebate claim appeals:
The primary issue was whether the Tribunal had the jurisdiction to entertain appeals related to rebate claims on input services used in the export of services. The appellant argued that the Tribunal should have jurisdiction under Section 86 of the Finance Act, 1994. The Revenue countered that the jurisdiction was ousted by the amendment to Section 83 of the Finance Act, 1994, which incorporated Section 35EE of the Central Excise Act, 1944, assigning such matters to the Revisional Authority.

2. Interpretation and application of Section 83 of the Finance Act, 1994, and Section 35EE of the Central Excise Act, 1944:
The Tribunal examined the legislative intent and concluded that the incorporation of Section 35EE into Section 83 of the Finance Act, 1994, effective from 28-5-2012, was meant to exclude the Tribunal's jurisdiction over rebate claims. They emphasized that the jurisdiction for rebate claims was clearly demarcated to be under the Revisional Authority as per Section 35EE of the Central Excise Act, 1944. The Tribunal stated that the procedural law as on the date of seeking redressal applies, and thus, the appeals filed after the amendment were beyond the Tribunal's jurisdiction.

3. Chargeability of appeal fees in refund appeals:
The appellant contested the Deputy Registrar's demand for appeal fees in refund appeals, arguing that fees should only be charged against a demand of tax, not a refund. The Tribunal did not express an opinion on this issue at this stage, as it was deemed academic and premature given their decision on jurisdiction. They directed the Registry to place its note on the subject before the Hon'ble President for an appropriate order.

Conclusion:
The Tribunal concluded that it did not have jurisdiction to entertain rebate claim appeals due to the specific provisions of Section 35EE of the Central Excise Act, 1944, as incorporated into Section 83 of the Finance Act, 1994. The appellant was advised to seek redressal from the appropriate Revisional Authority. The issue of appeal fees was deferred for further consideration by the Hon'ble President.

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