Custom, Excise & Service Tax Tribunal
Tieto Software Technologies Pvt Ltd vs Commissioner Of Central Excise, Pune on 2 June, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. ST/344/12 [Arising out of Orders-in- Appeal No. PIII/RS/112/2012 dated 30-3-2012 passed by the Commissioner(Appeals) Central Excise, Pune-II ] For approval and signature: Honble Mr Ramesh Nair, Member(Judicial) Honble Mr. Raju, Member (Technical) =======================================================
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
=======================================================
Tieto Software Technologies Pvt Ltd
:
Appellant
VS
Commissioner of Central Excise, Pune
:
Respondent
Appearance
Shri. Prakash Shah, Advocate for the Appellants
Shri. V. Kaushik, Asstt. Commissioner(A.R.) for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Honble Mr. Raju, Member (Technical)
Date of hearing: 2/6/2016
Date of decision 2/6/2016
ORDER NO.
Per : Ramesh Nair
The issue involved in the present case is the dispute of rebate claim of service tax under Notification No. 12/2005-ST dated 19/4/2005.
2. Shri. Prakash Shah, Ld. Counsel for the appellant submits that as per first proviso to Section 86 of the Finance Act, 1994 the order relating to export of services and consequential grant of rebate on the service tax on input service or rebate of duty paid on inputs shall be dealt in accordance with the provisions of Section 35 EE of the Central Excise Act, 1944. It is also provided in the second proviso that all the appeals on the said issue pending before this Tribunal shall be transferred and be dealt in accordance with second proviso to Section 35 EE.
3. On the other hand, Shri. V. Kaushik, Ld. Asstt. Commissioner(A.R.) appearing on behalf of Revenue reiterates the findings of the impugned order.
4. On careful consideration of submissions made by both sides, we find that issue involved in the present case is of rebate of service tax paid on the input services used for export of services. In this regard the relevant provisions of appeal is as under:
SECTION 86.Appeals to Appellate Tribunal. [Save as otherwise provided herein an? (1) assessee] aggrieved by an order passed by a [[Principal Commissioner of Central Excise or Commissioner of Central Excise] under [section ]], or an order passed?*?*??*?73 or section 83A [ 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) :
Provided further that all appeals filed before the Appellate Tribunal in respect of matters covered under the first proviso, after the coming into force of the Finance Act, 2012 (23 of 2012), and pending before it up to the date on which the Finance Bill, 2015 receives the assent of the President, shall be transferred and dealt with in accordance with the provisions of section 35EE of the Central Excise Act, 1944 (1 of 1944).] From the above Section 86 read with first and second proviso, it is very clear that all the appeals filed before this Tribunal on the issue of rebate of service tax in respect of export of services shall be transferred and dealt with in accordance with Section 35 EE of Central Excise Act, 1944, which is reproduced below:
SECTION [35EE.?Revision by Central Government. (1) The Central Government may, on the application of any person aggrieved by any order passed under section 35A, where the order is of the nature referred to in the first proviso to sub-section (1) of section 35B, annul or modify such order :
[Provided that the Central Government may in its discretion, refuse to admit an application in respect of an order where the amount of duty or fine or penalty, determined by such order does not exceed five thousand rupees.] Explanation. For the purposes of this sub-section, order passed under section 35A includes an order passed under that section before the commencement of section 47 of the Finance Act, 1984 against which an appeal has not been preferred before such commencement and could have been, if the said section had not come into force, preferred after such commencement, to the Appellate Tribunal.
[(1A) The [Principal Commissioner of Central Excise or Commissioner of Central Excise] may, if he is of the opinion that an order passed by the Commissioner (Appeals) under section 35A 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.
[(3)?An application under sub-section (1) shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf and shall be accompanied by a fee of, -
(a)?two hundred rupees, where the amount of duty and interest demanded, fine or penalty levied by any Central Excise officer in the case to which the application relates is one lakh rupees or less;
(b)?one thousand rupees, where the amount of duty and interest demanded, fine or penalty levied by any Central Excise officer in the case to which the application relates is more than one lakh rupees :
Provided that no such fee shall be payable in the case of an application referred to in sub-section (1A).] (4)?The Central Government may, of its own motion, annul or modify any order referred to in sub-section (1).
(5)?No order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value shall be passed under this section,
(a)?in any case in which an order passed under section 35A has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value; and
(b)?in any other case, unless the person affected by the proposed order has been given notice to show cause against it within one year from the date of the order sought to be annulled or modified.
(6)?Where the Central Government is of opinion that any duty of excise has not been levied or has been short-levied, no order levying or enhancing the duty shall be made under this section unless the person affected by the proposed order is given notice to show cause against it within the time-limit specified in section 11A.] As per above provision of Section 35EE, the competent authority is revisionary authority to deal with the aforesaid matters of rebate. Considering the above provisions, we are of the view that present appeal should be transferred to revisionary authority, Government of India. We are therefore direct the registry to transfer this matter to the revisionary authority. Appeal is disposed of in the above terms.
(Operative part pronounce in court ) Raju Member (Technical) Ramesh Nair Member (Judicial) sk 5 ST/344/12