9911796707
TMI Blog2025 (2) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise Act, 1944. In terms of provisions of Section 86 of the Finance Act, 1994 where an order relating to service which is exported which has been passed under Section 85 and the matter relates to grant of rebate of service tax on input services or rebate of duty paid on inputs, appeals are required to be filed before the Revisionary Authority, Government of India in accordance with the provisions of Section 35EE of the Central Excise Act, 1994. The proviso of Section 35B of the Central Excise Act, 1944 clearly speaks of exclusion of jurisdiction of this Tribunal in relation to matters relating to rebate of duty. As all the impugned orders passed by the Commissioner (Appeals) relates to rebate claims, the Tribunal lacks jurisdiction in these matters. These appeals are not maintainable before this Tribunal as the remedy lies under Section 35EE of the Central Excise Act, 1944 by way of filing revision applications to Central Government. Conclusion - In view of the first proviso to Section 35B of the Central Excise Act, 1944 where an order passed by the Commissioner (Appeals) under Section 35A, the Tribunal shall not have jurisdiction to decide any appeal relating to rebate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4/2018 have been filed by the Appellant assailing the impugned Orders-in-Appeal Nos. 170-172/2017 dated 28.03.2017 of Commissioner of Service Tax (Appeals-I), Chennai upholding the impugned Orders-in-Original rejecting rebate claims under Notification No. 39/2012-CE(NT) dated 20.06.2012 towards service tax paid on the export of services, the details of which have been tabulated below : - S.No. Appeal No./ Date OIO No./ Date Period Involved Refund Claimed Refund rejected (1) (2) (3) (4) (5) (6) 1 221/2016 (STA-I)(ST-I) Dt. 18.05.2016 30/2016(R) Dt. 22.03.16 Oct'13 to Mar'14 ₹1,58,68,528/- ₹1,00,65,760/- 2 230/2016 (STA-I)(ST-I) Dt. 25.05.2016 33/2016(R) Dt. 29.03.16 Oct'14 to Dec'14 ₹1,00,20,356/- ₹66,59,687/- 3 231/2016 (STA-I)(ST-I) Dt. 25.05.2016 32/2016(R) Dt. 29.03.16 Apr'14 to Sep'14 ₹77,34,640/- ₹33,20,087/- 1.4 All the above appeals are being taken up together for disposal by a common order as the issue involved in all these Appeals is identical relating to the jurisdiction of this Tribunal to adjudicate the disputes arising out of rebate claims. 2.1 Facts indicate that the Appellant was registered wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Karnataka in the case of CCE, Bangalore-III Vs. Stanzen Toyotseu India (P) Ltd. [2011 (23) STR 444 (Kar)]. v. It was submitted that Catering services was provided to employees/ labourers for the construction of premises and they were eligible to avail input service credit in view of the decision in the case of Hindustan Coca Cola Beverages Pvt. Ltd. Vs. CCE, Hyderabad-I [2017 (49) STR 88 (Tri.- Hyd.)]. vi. It was submitted that the Appellant received event management and manpower recruitment services from different entities in relation to promotion of their sales and brand name which was in relation to their business and therefore were eligible for availing Cenvat credit and placed reliance on the decision in the case of Shree Cement Ltd. Vs. CCE& ST, Jaipur-II [2014 (36) STR 1107]. vii. Regarding Cenvat credit denied on the ground that the invoices were incomplete, it was averred that there is no merit in rejection of the refund when the duty paid nature of the document is not in doubt. Reliance was placed on the decisions in a. Bajaj Hindustan Ltd. Vs. CCE, Lucknow [2013 (30) STR 675] b. Amalgamation Repco Ltd. Vs. CCE [2013 (31) STR 370 (Tri.-Chennai)] and c. Hyd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are to be filed is the revisionary authority under Section 35EE of the Central Excise Act, 1944. 4.5 The Ld. Advocate has prayed that the above appeals field before this Tribunal may be decided accordingly or may pass such further or other orders in this and thus render justice. 5. The Ld. Authorised Representative Smt. O.M. Reena and Smt. Anandalakshmi Ganeshram representing the Department affirmed the findings in the impugned orders and submitted that the Appellant had availed credit on ineligible services and so rejection of part of the rebate claims is in order. It was also submitted that the dispute involved in all these appeals pertained to rebate claims and the appeals should have been filed before the Revisionary Authority, Government of India. 6. We have carefully considered the submissions made by both the sides and also evidences available on records. 7. We find that the Appellant had filed rebate claims of tax paid on input services under Notification No. 39/2012-CE(NT) dated 20.06.2012 on the export of services and the adjudicating authority had partly rejected the rebate claims which were appealed against. As the lower appellate authority had upheld the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been paid on the input services to the provider of service; Provided if the person is himself is liable to pay for any input services; he should have paid the service tax and cess to the Central Government. (d) the total amount of rebate of duty, service tax and cess admissible is not less than one thousand rupees; (e) no CENVAT credit has been availed of on inputs and input services on which rebate has been claimed; and (f) that in case,- (i) the duty or, as the case may be, service tax and cess, rebate of which has been claimed, has not been paid; or (ii) the service, rebate for which has been claimed, has not been exported; or (iii) CENVAT credit has been availed on inputs and input services on which rebate has been claimed, the rebate paid, if any, shall be recoverable with interest in accordance with the provisions of section 73 and section 75 of the Finance Act, 1994 (32 of 1994) 3. Procedure. 3.1 Filing of Declaration. - The provider of service to be exported shall, prior to date of export of service, file a declaration with the jurisdictional Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said rules, along with documents evidencing such export. (b) The jurisdictional Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, having regard to the declaration, if satisfied that the claim is in order, shall sanction the rebate either in whole or in part." 10. The above facts very clearly indicate that all the appeals pertained to rebate claims filed by the Appellant before the Lower Authorities. As such, the issue that has to be examined in these appeals is regarding whether Tribunal has jurisdiction to decide these rebate cases. It would be expedient to reproduce provisions of Sections 35B and 35EE of the Central Excise Act, 1944, and Section 86 of the Finance Act, 1994 which read as follows: - "35B. APPEALS TO THE APPELLATE TRIBUNAL (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order (a) a decision or order passed by the [Principal Commissioner of Central Excise or Commissioner of Central Excise] as an adjudicating authority; (b) an order passed by the Commissioner (Appeals) under section 35A; (c) an order passed by the Central Board of Excise and Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 35-A is not legal or proper, direct the proper officer to make an application on his behalf to the Central Government for revision of such order.] (2) An application under sub-section (1) shall be made within three months from the date of the communication to the applicant of the order against which the application is being made: Provided that the Central Government may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the aforesaid period of three months, allow it to be presented within a further period of three months." "Section 86 of the Finance Act, 1994 - Appeals to Appellate Tribunal - (w.e.f. 14.05.2015) (1) [Save as otherwise provided herein, an assessee] aggrieved by an order passed by a [Principal Commissioner of Central Excise or] Commissioner of Central Excise under [section 73 or section 83A [xxx]], or an order passed by a Commissioner of Central Excise (Appeals) under section 85, may appeal to the Appellate Tribunal against such order [within three months of the date of receipt of the order:] [PROVIDED that where an order, relating to a service which is exported, has been passed under se ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
