Custom, Excise & Service Tax Tribunal
Vodafone Mobile Services ... vs Commissioner Of Service Tax, Pune on 15 April, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. ST/85589, 85590/16 [Arising out of Order-in- Appeal No. PUN-SVTAX-000-APP-181& 182-15-16 dtd. 16/12/2015 passed by the Commissioner of Service Tax(Appeals) Pune] Vodafone Mobile Services Limited(formerly known as Vodafone Cellular Limited) : Appellants VS Commissioner of Service Tax, Pune : Respondent
Appearance Shri. Prakash Shah, Advocate with Shri. Mihir Mehta, Advocate for the Appellants Shri. B. Kumar Iyer, Superintendent(A.R.) & Shri. Sanjeev R. Nair, Examiner(A.R.) for the Respondent CORAM:
Honble Mr. Ramesh Nair, Member (Judicial) Date of hearing: 15/4/2016 Date of decision: /2016 ORDER NO.
Per : Ramesh Nair These appeals are listed for maintainability on the following points:
(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.
2. Shri. Prakash Shah, Ld. Counsel with Shri. Mihir Mehta, Advocate appeared on behalf of the Appellants and submits that in the present case, the issue relates to rebate claim on the output service exported out of India. As per Section 86 of the Finance Act, 1994, orders passed by the Commissioner(Appeals) under Section 85 are appealable to this appellate Tribunal. However, order relating to rebate of service tax on input service or on rebate of duty paid on inputs used for providing output service, revision application lies before revisionary authority, in accordance with the provision of Section 35 EE of Central Excise Act, 1944. As per above provision, orders only relating to rebate of input or input service are carved out for filing appeal before this Tribunal and the orders on other issue passed by the Commissioner(Appeals) are appealable to this Tribunal. In the present case the issue relating to exports of service tax paid on output service which has not been carved out for the purpose of filing appeal under Section 86. In support, he placed reliance on following judgments:
(a) Commissioner of Service Tax-I Vs. Ambe International [2015(40) STR 441(BOM)]
(b) Glyph International Ltd. Vs. Commissioner of C. Ex. & ST, Noida[2013(31) STR 430(Tri. LB)]. On the issue of payment of fees for filing appeal, he submits that the present issue is of rebate claim of the service tax paid by the appellant. As per Section 86(6), it refers to fee based on the amount of demand involved in the case whereas there is no provision for payment of fee in case of refund/rebate therefore no fees is applicable in the present case. He placed reliance on the following judgments:
(a) Glyph Interntional Ltd. Vs. Commissioner of C. Ex. & ST, Noida[2013(31) STR 430(Tri. LB)] above Larger Bench judgment was upheld by the Honble Allahabad High Cour t in Commissiner of Central Excise Vs. Glyph International [2014(35) STR 30(All.)
3. On the other hand, Shri. B. Kumar Iyer, Superintendent(A.R.) & Shri. Sanjeev R. Nair, Examiner(A.R.) appearing on behalf of the Revenue, submits that as per Section 35EE, as the matter is of nature referred to in the first proviso to subsection (1) of the Section 35B, revision application lies before revisionary authority government of India and this nature of cases has been carved out under the first proviso to subsection (1) of Section 35B. As per proviso subsection (1) of Section 35B order relates to rebate of duty of excise on goods exported to any country or territory out side India are not appealable to this Tribunal. He submits that provision of Section 35EE is applicable to the service tax matters by virtue of Section 83 of Finance Act, 1945. therefore present case relates to rebate of service tax paid on service exported, revision application lies in terms of Section 35EE. He placed reliance 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]
4. I have carefully considered the submissions made by both sides.
5. I find that though as per the provision of first proviso to Section 35B(i), the order relates to rebate of duty paid on goods exported are not appealable to this Tribunal and in such matter revision application lies before the Revisionary Authority, Government of India in terms of Section 35EE. However in case of service tax there is a specific provision made under Section 86 which read as under :
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 Section 85 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).
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 rabate 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 35 EE 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 serivces. Since there is independent provision under Section 86 in such cases Section 35 B 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 Interntional Ltd(LB)(supra) and the same was upheld by the Honble Allahabad High Court, according to which, in case of rebate or refund matters, payment of fees is not required for filing the appeal. Therefore the appeal is maintainable on the both the counts. Appeals are admitted. Registry is directed to list the matters in due course.
(Dictated in court) Ramesh Nair Member (Judicial) sk 6 ST/85589, 85590/16