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TMI Blog2013 (7) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... ee is entitled to the refund of the CENVAT credit under Rule 5of the CENVAT Credit Rules, 2004 - As decided in Repro India Ltd. vs. Union of India(2007 (12) TMI 209 - BOMBAY HIGH COURT) that CENVAT credit would be available on input or input services used in the manufacture and export of exempted goods. Bar on Limitation – Held that:- Bar of limitation cannot be a ground to refuse CENVAT credit to the assessee - limitation under Section 11B not to be applied for refund of accumulated CENVAT credit. - Decision in the case of mPortal India Wireless Solutions P. Ltd. (2011 (9) TMI 450 - KARNATAKA HIGH COURT) followed. Exempted services Rule 2(e) of the CENVAT Credit Rules, 2004 - Held that:- Information Technology Software Service' bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing under the taxable service category of Consulting Engineer' and during the impugned period they had not obtained service tax registration in respect of the said service. It was also noted that the appellant had not maintained any separate accounts for the inventory of input services' meant for use in providing taxable output service and quantity of input service which is intended for use in the exempted services as required under Rule 6 of the CENVAT Credit Rules, 2004. Accordingly, a show cause notice dated 29/09/2009 was issued proposing to reject the refund claims. 2.2 The notice was adjudicated vide order dated 23/02/2009. The learned adjudicating authority observed that as per Rule 6(3)(c) of the CENVAT Credit Rules, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... software services and, therefore, they are rightly eligible for the refund under Rule 5 of the CENVAT of the CENVAT Credit Rules, 2004. It is also contended that software maintenance and repair service undertaken by them was a taxable service under Section 65(105)(zzg) of the Finance Act, 1994 and the department had wrongly construed that the above exported service is an exempted service. The CBEC also, vide circular No. 81/2/2005-ST dated 07/10/2005 had clarified software falls under management, maintenance or repair service'. It is also argued that export of software developed by them for export of goods and IT software is classifiable under Chapter Heading No. 8523 of the Central Excise Tariff act, and export of excisable goods is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. 5.1 From the records of the case it is seen that during the impugned period the appellant had exported the following goods/services: (i) Software Maintenance Service, classifiable under the category of Management, Maintenance or Repair Service'; (ii) Software Development service; and (iii) Software Consultancy Service. 5.2 As regards the management, maintenance or repair of computer software service, the same is classifiable under the taxable service category of management, maintenance or repair service' as defined in Section 65(64) of the Finance Act, 1994. As regards the development of software and software consultancy, the same became taxable under service tax only w.e.f. budget 2008 when Informatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on any final product cleared for home consumption or for export on payment of duty or service tax on output service, and where for any reason such adjustment is not possible, the manufacturer or the provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification. 5.4 Accordingly, Notification NO. 5/2006-CE (.N.T.) dated 14/03/2006 has been issued. Rule 6 of CENVAT Credit Rules, 2004 deals with obligation of the manufacturer of dutiable and exempted goods and provider of taxable and exempted services. Under Rule 6(3)(c), the provider of output service shall utilize credit only to the extent of an amount not exceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refuse cenvat credit to the assessee. 7. Insofar as requirement of registration with the department as a condition precedent for claiming cenvat credit is concerned, learned counsel appearing for both parties were unable to point out any provision in the cenvat credit rules which impose such restriction. In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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