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2016 (11) TMI 832 - CESTAT MUMBAI

2016 (11) TMI 832 - CESTAT MUMBAI - TMI - Maintainability of appeal - fee for filing appeal not paid - rejection of Rebate claim - jurisdiction of Tribunal as per proviso (b) to Section 35B(i) of Central Excise Act - Held 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 .....

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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. - 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 services. 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. .....

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ORDER 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 i .....

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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 Serv .....

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in the present case. He placed reliance on the following judgments: (a) Glyph International Ltd. Vs. Commissioner of C. Ex. & ST, Noida [2013(31) STR 430(Tri. LB)] above Larger Bench judgment was upheld by the Hon ble Allahabad High Court in Commissioner 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 .....

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5EE 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 .....

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xcise 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 i .....

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