Custom, Excise & Service Tax Tribunal
M/S. Spanco Telesystems & Solutions Ltd vs Commissioner Of Service Tax, Mumbai on 7 March, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO.1
APPEAL NO.ST/229/08
(Arising out of Order-in- Appeal No.SRK/487/M.II/2008(ST) dtd.11.8.2008 passed by the Commissioner of Central Excise (Appeals), Mumbai )
For approval and signature:
Honble Mr S.S.Kang, Vice President
Honble Mr.P.K.Jain, 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?
============================================================= M/s. Spanco Telesystems & Solutions Ltd.
:
Appellants VS Commissioner of Service Tax, Mumbai Respondent Appearance Shri S.S.Gupta, C.A. for Appellants Shri Rakesh Goyal, Addl. Commissioner(A.R.) for Respondent CORAM:
Mr. S. S. Kang, Vice President Mr.P.K.Jain, Member(Technical) Date of hearing: 07/03/2014 Date of decision 07/03/2014 ORDER NO. Per : S.S.Kang Heard both sides.
2. Revenue raised the issue of maintainability of the appeal in view of the provisions of Sec.86 of the Finance Act, 1994. The contention of the Revenue is that the appellants filed this appeal against the Order-in-appeal passed by the Commissioner(Appeals) in respect of rebate claim. Revenue after relying upon the provisions of Sec.86 of the Finance Act, submitted that the CESTAT shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944. As per the provisions of Sec.35B of the Central Excise Act, the Tribunal has no jurisdiction to decide the appeal in respect of the order passed by the Commissioner(Appeals) in respect of the rebate claim, In view of this, the appeal is not maintainable.
3. The appellants submitted that as per Sec.83 of the Finance Act, provisions of specified Sections of the Central Excise Act were made applicable in relation to the service tax. In this Section, provisions of Sec.35EE of the Central Excise Act were included with effect from 28.5.2012 and the present appeal is filed prior to that date. The contention is that as the appeal has been filed prior to amendment, therefore, it is maintainable.
4. We find that Sec.35EE is in respect of revision by Central Government under the Central Excise Act. In Sec.83 of the Finance Act, the provisions of Sec.35EE of the Central Excise Act were included amending thereby revision lies to the Central Government whereas as per Sec.86, it covers appeal to the Appellate Tribunal. There was specific provision which provides that the Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeal and making orders under the Central Excise Act. We find that as per Sec.35B of the Central Excise Act, the Tribunal has no jurisdiction to hear the appeal filed against the order passed by the Commissioner(Appeals) in respect of the rebate claim. We find force in the contention of the Revenue that the appeal is not maintainable.
5. As we find that this appeal was filed in 2008 and pending in the Tribunal, therefore, the Registry is directed to transfer the appeal papers to the Joint Secretary to the Government of India, Revisional authority, New Delhi.
(Dictated in court) P.K.Jain Member(Technical) S. S. Kang Vice President pv 3