2011 (9) TMI 450 - HC - Service Tax

Refund of Cenavt - 100% Export Oriented Unit - Service Tax Registration Certificate not submitted - Period of limitation - Held That - The assessee is entitled to the refund of the Cenvat credit. Similarly insofar as refund of Cenvat credit is concerned, the limitation under section 11B does not apply for refund of accumulated cenvat credit. Therefore, bar of limitation cannot be a ground to refuse cenvat credit to the assessee. Registration not compulsory for refund - Export of software not a taxable service still refund cannot be denied - Assessee to produce the invoice, bills, receipts to substantiate their claim.

Summary

Issues:
- Refusal of Cenvat credit refund by authorities based on lack of registration with the department.
- Applicability of limitation under Section 11B for refund of accumulated Cenvat credit.
- Entitlement of the assessee to claim Cenvat credit despite export of software not being a taxable service.
- Requirement of furnishing details of taxes paid on input service for refund.

Refusal of Cenvat Credit Refund:
The assessee, a 100% export-oriented unit, had claimed a refund of accumulated Cenvat credit. The authorities rejected the refund claim citing non-submission of the assessee registration certificate on service tax and lack of details on the nature of services utilized. The Tribunal upheld the rejection, stating that the Cenvat scheme is available only to registered assesses. However, no statutory provision mandates registration as a condition precedent for claiming Cenvat credit. The Tribunal and lower authorities erred in rejecting the claim based on a non-existent legal ground. The finding was set aside, and the matter was remanded to the adjudicating authority for further verification based on the documents provided by the assessee.

Applicability of Limitation under Section 11B:
The Tribunal clarified that the limitation under Section 11B does not apply to the refund of accumulated Cenvat credit. Therefore, the bar of limitation cannot be used as a ground to deny Cenvat credit to the assessee.

Entitlement to Claim Cenvat Credit:
Despite the export of software not being a taxable service during the claim period, the Tribunal held that the assessee is entitled to take credit of service tax paid on input services. The Tribunal emphasized that the export of software being non-taxable does not preclude the assessee from claiming Cenvat credit on input services.

Requirement of Furnishing Details for Refund:
The original authority had requested the assessee to provide particulars of taxes paid on input services, including producing invoices, bills, and receipts for verification. The assessee's entitlement to the refund of Cenvat credit is contingent upon proving the payment of input service tax. The matter was remanded back to the adjudicating authority for a decision on the correctness of the claim based on the evidence provided by the assessee, with liberty granted to produce additional supporting documents for verification.