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2016 (6) TMI 447 - AT - Service TaxEligibility for refund - Rule 5 of the CCR - unutilized credit availed prior to obtaining registration - software and application engineering and support service - export of service - Held that - by following the judgment of Karnataka High Court in the case of mPortal India Wireless Solutions Pvt. Ltd. Vs ST 2011 (9) TMI 450 - KARNATAKA HIGH COURT and decision of Principal Bench of the Tribunal at Delhi in the case of Dorling Kindersley (I) Pvt. Ltd. Vs CCE & ST Noida 2015 (6) TMI 748 - CESTAT NEW DELHI , even though appellant were not registered prior to 16.6.2008, they are eligible for refund of the unutilized credit which was accumulated prior to registration. Eligibility for refund of Cenvat credit - Nexus between the input service availed by appellant vis-a-vis the output service rendered by appellant - Input services not directly used for providing output service - Period of dispute is prior to 2011 - Held that - the credit taken by the appellant in relation to various output services is in order in view of the fact that period of dispute is prior to 1.4.2011 and also in view of the fact that the phrase activities relating to business would cover all the activities for which credit has been denied and in view of various rulings of the High Court and the Tribunal on the eligibility of service. Period of limitation - Eligibility of refund claim - time-barred for a portion of the claim for refund - Held that - the matter is remanded to the first appellate authority to re-examine the aspect in view of the amendment brought in by Notification No.14/2016-CE (NT) dt. 1.3.2016 and other evidences to be gone into by the first appellate authority. - Appeal disposed of
Issues Involved:
1. Eligibility of unutilized credit availed prior to obtaining registration with the Service Tax department. 2. Nexus between the input service availed by the appellant and the output service rendered, and eligibility of CENVAT credit. 3. Refund partially hit by the limitation of time. Detailed Analysis: Issue 1: Eligibility of Unutilized Credit Prior to Registration The appellant argued that under Section 69 of the Finance Act, 1994, read with Rule 4 of Service Tax Rules, 1994, registration is required only for service providers liable to pay service tax. Since the appellant was engaged in the export of services, they were not required to register for service tax payment. The appellant cited Rule 3 of the CENVAT Credit Rules, 2004, which does not stipulate registration as a pre-condition for availing CENVAT credit. The appellant relied on the Karnataka High Court judgment in mPortal India Wireless Solutions P. Ltd. Vs CST Bangalore, which held that there is no statutory provision requiring registration for claiming CENVAT credit. The Tribunal agreed, stating that the appellant is eligible for refund of unutilized credit accumulated prior to registration, following judicial precedents. Issue 2: Nexus Between Input Services and Output Services The appellant claimed refund on service tax paid for various services such as Maintenance and Repair, Consulting, Courier, CHA, Professional services, Insurance, Visa transaction fees, Rent-a-cab, and freight charges. The Commissioner (Appeals) had denied the refund, stating these services were not directly used for providing the output service. However, the Tribunal noted that the period of dispute was prior to 2011, and most services were only deemed ineligible for credit from 1.4.2011. The Tribunal emphasized that the inclusive part of the definition of "input service" under Rule 2(l) covers activities relating to business, which includes the services for which credit was claimed. The Tribunal found the appellant's arguments and reliance on various judicial pronouncements persuasive, ruling in favor of the appellant. Issue 3: Refund Partially Hit by Limitation of Time The Commissioner (Appeals) had denied a portion of the refund claim as time-barred. The Tribunal noted that Section 11B of the Central Excise Act does not specifically cover refund of unutilized credit, and the notification under Rule 5 of CCR cannot extend beyond the primary section. The appellant argued that the relevant date for the purpose of limitation should be the date of receipt of foreign exchange for exported services, citing various Tribunal rulings. The Tribunal remanded this issue back to the Commissioner (Appeals) to re-examine in light of the amendment brought by Notification No. 14/2016-CE (NT) dated 1.3.2016, allowing the appellant to furnish further evidence. Conclusion: The Tribunal ruled in favor of the appellant on the first two issues, affirming their eligibility for refund of unutilized credit prior to registration and recognizing the nexus between the input services and output services. The third issue regarding the time-barred refund claim was remanded to the Commissioner (Appeals) for re-examination in light of recent amendments. The appeals were disposed of accordingly.
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