CESTAT, BANGALORE BENCH
Commissioner of Central Excise (Appeals)
Final Order No. 195 of 2012Online GST Certification Course by TaxGuru & MSME- Click here to Join
Appeal No. ST/1043 of 2009
February 24, 2012
1. Brief facts of the case are that the appellant is registered with the department as a receiver of service for the GTA service availed by them. They were engaged in export of Iron Ore. The appellant had filed a refund claim of Rs.6,85,973/- which was returned by the adjudicating authority for want of supporting documents and to intimate relevant provisions of Central Excise Rules under which refund was claimed. Thereafter, they filed a rebate claim dated 28.07.2008 for an amount of Rs. 5,98,454/- for input services used in the manufacture of exported goods under the provisions of Rule 18 of Central Excise Rules, 2002 r/w Notification No. 19/2004-CE (NT) dated 06.09.2004 as amended. The department noticed that rebate of only duty paid on excisable goods used in the manufacture of or processing of export goods can be claimed under Rule 18 and not as credit of service tax paid on input service.
2. Proceedings were initiated for rejecting the claim made by the appellant. Subsequently both the lower authorities after giving opportunity to the appellant to present their case rejected the claim on the ground that the rebate is not admissible since the appellant did not follow the procedure under Notification No. 21/2004-CE (NT) dated 06.09.2004.
3. This appeal has been coming up on several occasions. On 24.08.2010 and 29.12.2010 nobody was present on behalf of the appellant and on 21.06.2011 the matter was adjourned to facilitate the learned advocate for the appellant to produce documents to show that the rebate claim and refund claim relate to the same shipment and jurisdiction issue also was raised. However, on 28th September again the learned counsel for the appellant wanted to file certain documents including a copy of an appeal memo filed before the Commissioner (Appeals) and hence the matter was adjourned to 09.12.2011. Thereafter when the matter was taken up today, nobody is present on behalf of the appellant nor there is any request for adjournment even though notice had been issued as early as 14.12.2011.
4. Accordingly the appeal is taken up for the final decision.
5. Heard the learned Commissioner (AR) who submits that whatever was submitted to the department was rebate claim under Notification No.21/2004 after the refund claim was rejected. The rebate claim has been correctly rejected on the ground that the procedure as set out under Notification No.21/2004 has not been followed. In any case, he submits that according to Section 35B of Central Excise Act 1944 in respect of rebate claims, the Tribunal has no jurisdiction and the appeal has to be filed before Government of India. I find myself in agreement with this submission and accordingly, reject the appeal as not maintainable.