2016 (2) TMI 658 - AT - Service Tax

Refund of un-utilized CENVAT Credit taken under Rule 5 of the Cenvat Credit Rules, 2004 - Applicability of Rule 6A of the Export of Service Rules, 2005 and Notification No. 39/2012-ST - Revenue argued that the appellants are not entitled to avail CENVAT Credit as they are not registered manufacturer or service provider. - Held that - CENVAT Credit can be availed by only a registered Central Excise or Service Tax assessee. In the current case, the assessee is not a registered Central Excise or Service Tax assessee and therefore cannot come under the purview of Cenvat Credit Rules, 2004 and therefore cannot claim refund under Rule 5 of the Cenvat Credit Rules, 2004 - Decided against the assessee.

Summary

Issues:
1. Entitlement to avail CENVAT Credit by non-registered service provider.
2. Applicability of Rule 6A of the Export of Service Rules, 2005 and Notification No. 39/2012-ST.

Analysis:
1. The case involved M/s Shams Healthcare Software (P) Ltd., exporters of services, not registered as a service provider or manufacturer but as a non-assessee per Circular No. 919/09/2010-CX. The appellant filed refund claims under Rule 5 of the Cenvat Credit Rules, 2004. The first claim of Rs. 1,10,308/- had Rs. 15,993/- sanctioned, and the rest rejected. The second claim of Rs. 1,14,492/- had Rs. 70,581/- sanctioned and Rs. 43,911/- rejected. The Revenue appealed against the sanctioned amounts, which the Commissioner (Appeals) allowed, stating the appellant was not entitled to CENVAT Credit due to non-registration as a service provider. The Commissioner also noted issues regarding Rule 6A of the Export of Service Rules, 2005 and Notification No. 39/2012-ST, which were not examined by lower authorities.

2. The appellant argued that registration as a service provider was not necessary to avail credit, citing Circular No. 919/09/2010-CX. The Revenue contended that only registered manufacturers or service providers could claim CENVAT Credit, emphasizing the appellant's lack of registration. The Revenue also disputed the applicability of Rule 6A and Notification No. 39/2012-ST, stating they were not claimed by the appellant and were not part of the dispute in the Order-in-Original. The Revenue further argued that rebate claims for export of services were outside the Tribunal's jurisdiction per Section 86 of the Finance Act and Section 35B(ii) of the Central Excise Act.

3. The Tribunal considered the submissions and noted that the refund claim was under Rule 5 of the Cenvat Credit Rules, not a rebate claim, hence within its jurisdiction. CENVAT Credit could only be availed by registered Central Excise or Service Tax assessees, which the appellant was not. Consequently, the appellant's claims were dismissed as they did not fall under the purview of the Cenvat Credit Rules, 2004.