Rakesh Kumar, Technical Member - The appellant provide Business Auxiliary Services. According to them, they have applied service tax registration which has since been granted to them by the jurisdictional Superintendent of Central Excise in March, 2007. They provide I.T. enabled services like technical support services, back office services, customer care services, etc. under the category of Business Auxiliary Services to their clients abroad. Since the services had been provided to their clients abroad, no service tax was paid in accordance with the provisions of Rule 4 of the Export of the Service Rules, 2005. For providing Business Auxiliary Services to their clients abroad, they had received input services from different service providers on which service tax along with education cess had been paid. As the output services had been exported, they filed two rebate claims - first rebate claim dated 15.12.2005 for an amount of Rs. 1,98,24,267/- for the period 1.03.2005 to 30.09.2005 and second rebate claim dated 17.03.2006 for an amount of Rs.1,45,03,718/-for the period from 1.10.2005 to 31.12.2005 for rebate of service tax including education cess paid on input services used in providing the output services, which had been exported in terms of the provisions of Rule 3 of the Export of Services Rules, 2005. These rebate claims were filed in accordance with the provisions of Rule 5 of the Export of Services Rules, 2005 read with Notification No. 12/2005-ST, dated 19.04.2005.

1.1 The jurisdictional Dy. Commissioner, Service Tax, however, rejected both the rebate claims on the grounds that -

(a) the appellant have not followed the procedure prescribed for claiming rebate as prescribed in the Notification No.l2/2005-ST issued under Rule 5 of the Export of Service Rules, 2005 inasmuch as no declaration under para 3.1 of the Notification was filed; and

(b) they did not obtain the service tax registration under the Service Tax Rules.

1.2 The appeals filed by the appellants against the order of the Dy. Commissioner were dismissed vide Order-in-Appeal dated 31.10.2007 of the Commissioner (Appeals). The Commissioner (Appeals) while dismissing the appeals observed that filing of the declaration prior to the export of the services regarding the output services to be exported and the details of the input and inputs services to be used and its verification by the jurisdictional Dy. Commissioner/Asstt. Commissioner so as to prevent the mis-use of this concession is a substantive condition and by not filing the said declarations, the appellant have deprived the authorities of the opportunity to conduct the necessary checks to rule out the likelihood of any evasion of duty by misuse of this facility. Against this order of the Commissioner (Appeals), these two appeals have been filed.

2. Heard both the sides.

3. Shri B.L. Narsimahan, Advocate, ld. Counsel for the appellant, pleaded that the appellant had been issued the registration certificate in March, 2007, that though during the period of dispute, the registration certificate was not there, since the appellant were exporting the services being provided by them and were not liable to pay duty, they were not liable to obtain registration, that for claiming rebate under Rule 5 of the Export of Services Rules, 2005 read with Notification No.l2/2005-ST, service tax registration is not required as that there was no provision for obtaining registration in the notification no.l2/2005-ST, that the main ground on which the rebate claim has been rejected is that the declarations as required under para 3.1 of the notification had not been filed, that while declarations had not been filed prior to export of the services as, at that stage, it is not possible to anticipate as to which services would be required to be availed, such declarations had been filed subsequently, that the Hon'ble Punjab & Haryana High Court in the case of CST v. Convergys India (P.) Ltd. [2010] 28 STT 412 has held that when the r