TMI Blog2018 (8) TMI 1404X X X X Extracts X X X X X X X X Extracts X X X X ..... reely and effectively, the Government is of the considered view that the said condition in Proviso (c) is not meant for rejection of the rebate claim of the exporter when they were not having the option to file rebate under Para 2 at all for no fault on their part - The Commissioner (Appeals) in his order has clearly recorded that the EDI facility in the customs formation was not functional and it has not been denied anywhere in the revision application also. Further in case disbursement of rebate of Service Tax under Para 2 is not technically feasible at this juncture as claimed by the applicant, the rebate of service tax may be given under Para 3 on the basis of actual Service Tax paid by the respondent for which the applicant cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dictional Commissioner on the ground that the admissibility of the rebate claims was not examined by the Assistant Commissioner by checking the Shipping Bill-wise difference of more than 20% between the rebate of Service Tax available under Para 2 and Para 3 of the notification and thereby the excess rebate of Service Tax was granted to the respondent. The Commissioner (Appeals) vide his above-mentioned order-in-appeal allowed the departmental appeal to the extent that for determining the difference of more than 20% as specified in Proviso (c) of Notification No. 41/2012, Shipping Bill-wise amount is to be considered and not the cumulative amount of rebate of Service Tax claimed under Para 3 of the notification. However, he allowed the reba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime the department should not get advantage by applying Para 2 of the notification to deny the rebate of Service Tax to them. However, no one appeared for the applicant and no request is received from them to grant further personal hearing and thus the matter is taken up for decision on the basis of the grounds of revision already submitted by the applicant. 4. On examination of the revision application in the light of order-in-appeal, the Government observes that the main issue to be decided in this case is whether the rebate of Service Tax can be denied to the respondent under Para 3 of Notification No. 41 / 2012-S.T. when the respondent did not have any option to claim rebate of Service Tax under Para 2 due to non-functioning of EDI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of Service Tax is higher by 20% as compared to the amount of rebate under Para 2. But when the option to file rebate of Service Tax along with Shipping Bills under Para 2 at the time of export itself was not available, the above condition stipulated in Proviso (c) to claim rebate of Service Tax under Para 3 could not be complied with by the respondent. Thus, while the rebate of Service Tax under Para 3 is normally rejectable for noncompliance of the condition stipulated in Proviso (c) of Notification No. 41/2012S.T. when the exporter is in a position to exercise either of the two options freely and effectively, the Government is of the considered view that the said condition in Proviso (c) is not meant for rejection of the rebate c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls have been filed long back by the respondent is not found compatible with the respondent's claim and Commissioner (Appeals)'s observation that EDI System was not functional during the relevant time. Further in case disbursement of rebate of Service Tax under Para 2 is not technically feasible at this juncture as claimed by the applicant, the rebate of service tax may be given under Para 3 on the basis of actual Service Tax paid by the respondent for which the applicant cannot have any technical difficulty at present. But it is not fair at all to hold a view in this case that the rebate of service tax will not be granted under both the Paras of the notification even when the respondent has undeniably exported the goods by using tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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