By TIOL News Service

MUMBAI, JUNE 07, 2016: THE issue relates to rebate claim on the output service exported out of India.

The appeals were listed before the CESTATfor maintainability on the following grounds:

(a) Appellant has not paid fee for filing the appeal.

(b) Appeals were preferred against order passed by the Commissioner (Appeals) rejecting rebate claim which subject matter is not within the jurisdiction of this Tribunal as per proviso (b) to Section 35B(i) of Central Excise Act.

The matter was heard on 15/04/2016 and the order was dictated in Court on 26/05/2016.

The appellant placed reliance on the following two decisions –

++ Glyph International Ltd. Vs. Commissioner of C.Ex.& ST, Noida 2013-TIOL-1103-CESTAT-DEL-LB -No fees are payable on appeals relating to refund/rebate of Service Tax.  

++ Commissioner of Service Tax-I Vs. Ambe International 2015-TIOL-577-HC-MUM-ST - ST - Rebate claim-appeal against Order passed by Commissioner (A) lies before the CESTAT- Tribunal has clearly missed and omitted from consideration subsection (2A) of section 86 of FA,1994-Revenue appeal allowed: High Court

++ Glyph International Ltd. 2014-TIOL-560-HC-DEL-ST - The High Court held that   the amendment to Section 83 by making a specific reference to Section 35EE of the Central Excise Act, did not make any difference to the nature of jurisdiction exercisable by the CESTAT under Section 86; it continued to possess jurisdiction to decide on matters pertaining to rebate and refund.

The AR submitted that provision of Section 35EE is applicable to the service tax matters by virtue of Section 83 of Finance Act, 1994 and, therefore,as present case relates to rebate of service tax paid on service exported, revision application lies in terms of Section 35EE. Reliance is placed on the decision in case of Planet Saffron. Com India Ltd Vs. Commissioner of Service Tax, Mumbai-I [Order No. A/2336-2339/15/STB dated 24/7/2015]

The Bench inter alia extracted section 86(1) of the FA, 1994 which reads –

“Appeals to Appellate Tribunal

86. (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[***]], 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 Section85 and the matter relates to grant of rebate of service tax on input services, or rebate of duty paid on inputs, used in providing such service, such order shall be dealt with in accordance with the provisions of section 35EE of the Central Excise Act, 1944 (1 of 1944).”

The CESTAT observed –

“From the above Section 86 there is explicit provision by which the order relating to grant of rebate of service tax on input, service tax or rebate of duty paid on input have been carve out for appeal before this Tribunal and in such cases the assessee is required to file revisionary application under Section 35EE. However, in the said provision, the rebate of service tax paid on output service has not been carved out, therefore, present appeal on the issue of rebate of service tax paid on output service exported out of India is maintainable before this Tribunal. As regard the contention of the Ld. A.R. that Section 35EE is applicable in the service tax matters by virtue of Section 83, I am of the view that though Section 35EE is applicable but only for the cases related to rebate of service tax paid on input service or duty paid on inputs which were used in the export of services. Since there is independent provision under Section 86 in such cases Section 35B need not to be resorted. Therefore the present appeals are maintainable. As regard the decision of Planet Saffron.Com India Ltd (supra) relied upon by the Ld. A.R., on going through the said decision, I find that issue in that case is of rebate of service tax of input or input service used for providing export services which undisputedly not appealable before this Tribunal. However in the present case, the issue relates to rebate of service tax on output service therefore the decision is not applicable in the fact of the present case. As regard the fees for filing the appeal, the issue is settled by the Larger Bench of this tribunal in case of Glyph International Ltd (LB) (supra) and the same was upheld by the Hon'ble Allahabad High Court, according to which, in case of rebate or refund matters, payment of fees is not required for filing the appeal….”

Holding that the appeal is maintainable on both the counts, the same was admitted and the Registry was directed to list the matter in due course.

So near &yet so far: Also read Service Tax Rebate - Appeal Lies to Govt, not CESTAT?  & 2016-TIOL-1066-HC-P&H-CX .

(See 2016-TIOL-1356-CESTAT-MUM)