Customs, Excise and Gold Tribunal - Bangalore
Dell International Services vs The Commissioner Of Central Excise on 15 November, 2007
Equivalent citations: 2008[10]S.T.R.152
ORDER T.K. Jayaraman, Member (T)
1. These appeals have been filed against the Order-in-Appeal No. 21 & 22/2007 - ST dated 26.2.2007, passed by the Commissioner of Central Excise (Appeals-I), Bangalore.
2. Shri G. Sivadass, learned Advocate appeared on behalf of the appellants and Ms. Sudha Koka, learned SDR for the Revenue.
3. We heard both the sides, in the impugned order, the Commissioner (Appeals) has set aside the Orders-in-Original passed by the lower authority and directed the appellants to file their rebate claim with the correct jurisdictional Central Excise Assistant Commissioner for processing the claim. The appellants are aggrieved over the impugned order of the Commissioner (Appeals).
4. The learned Advocate informed the Bench that the appellants exported certain services. It was stated that in terms of the Export of Services Rules, they were entitled for rebate of tax paid on the input services on fulfillment of certain conditions which are stipulated in Notification No. 12/2005-ST dated 19.4.2005. The appellants filed the rebate claim before the Assistant Commissioner Service Tax. The Assistant Commissioner Service Tax issued a Show Cause Notice on the ground that the service exported by the appellants was exempted, that the input service was not really related to the claim and that they failed to fulfill the conditions prescribed in the Notification No. 12/2005-ST. However the Assistant Commissioner with whom the rebate claim was filed, rejected the rebate claim on the ground that he is not the Jurisdictional Assistant Commissioner of Central Excise and in terms of the Notification No. 12/2005-ST dated 19.4.2005, the rebate claim should have been filed before the Jurisdictional Assistant Commissioner or Deputy Commissioner of Central Excise. On the above ground, he rejected the refund claim. The appellants approached the Commissioner (Appeals). The Commissioner (Appeals) after examining the relevant rules of the Export of Services Rules, 2005 and also the Notification No. 12/2005-ST came to the conclusion that the appellants ought to have filed the rebate claim with the Jurisdictional Assistant Commissioner of the Central Excise. Therefore while setting aside the order of the lower authority, he directed the appellants to prefer the claim with the Jurisdictional Assistant Commissioner of Central Excise who may treat the date of filing of the claim as on the date when it was originally filed with the Assistant Commissioner of Service Tax, I Division, Bangalore and process the claim for sanction in terms of the provisions of Rule 5 of the Export of Services Rules, 2005 read with the Govt. of India Notification No. 12/2005-ST dated 19.4.2005 and Section 11B of Central Excise Act, 1944. The learned Commissioner (Appeals) has not examined the issue on merit.
5. Shri G. Shivadass, the learned Advocate argued that they had fulfilled all the conditions stipulated in the notification and they are entitled for the benefit of the rebate. He also pointed out that the conclusion of the lower authority and also the Commissioner (Appeals) that the appellants had not filed the rebate claim with the officer who is having jurisdiction is not correct in the light of the Trade Notice issued by the Chief Commissioner of Central Excise, Bangalore. Our attention was drawn to the Trade Notice No. 1/2004 CC C. Ex. (BZ) dated 15.9.2004 wherein a separate Service Tax Commissionerate was created and the jurisdiction of officers for administering the different services has been notified. It was also urged that the Assistant Commissioner Service Tax is actually the Jurisdictional Assistant Commissioner of Central Excise for all service taxi purposes. We find great force in the argument of the learned Advocate. When a separate Service Tax Commissionerate has been formed, it is not understood, why the rebate claim should go to the Assistant Commissioner of the Central Excise. The learned Departmental Representative drew our attention to the Notification No. 12/2005-ST wherein it is clearly stated that the rebate claim should be filed with the Jurisdictional Assistant Commissioner of Central Excise. We learn that the Service Tax is being administered by the Central Excise Department and the Assistant Commissioners who are in the Service Tax Commissionerate are also Assistant Commissioners of the Central Excise. There is no such designation as Assistant Commissioner of Service Tax in the entire scheme of things. Therefore in our view then there is a separate Commissionerate for Service Tax and when the various jurisdiction of the officers have been notified, the rejection of the claim on the ground that the appellants had not filed a claim before the proper Jurisdictional Assistant Commissioner is not correct. In these circumstances, the rejection of the claim by the lower authority is not correct. In view of the above observation and in the interest of justice, we remand the matter to the Commissioner (Appeals) for de novo decision on merit within three months from the date of receipt of this order. The appeals are allowed by way of remand.
(Operative portion of the order has been pronounced in the open court)