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TMI Blog2015 (11) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... s. That being the position, it cannot be said that just because the assessee was not registered, Cenvat credit could not have been taken. Once the credit was taken if it is admissible and when it accumulates and cannot be utilised, when the Rule provided for refund, such refund cannot be rejected. In any case, I have already taken a view that Paragraph 3(b) cannot be considered as a condition to avail Cenvat credit or to claim refund holding that the prerequisite would be export from the registered premises. - appellant is eligible for the refund. However, for the purpose of verification of correctness of the amount claimed and scrutiny which has not been done earlier or which has not been considered to have been done in my order can be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.T.R. 134 (Kar.)]. 4. The learned AR submits that the decision in the case of mPortal India Wireless Solutions Pvt. Ltd. would not be applicable to the facts of this case. He refers to Paragraph 7 of the impugned order wherein the learned Commissioner has pointed out that the export of service took place from unregistered premises and the Notification under which the refund has been claimed specifically provided that the export should take place from the registered premises. He draws my attention to the relevant provision in Notification No. 5/2006-C.E. (N.T.) and submits that since the appellant has not fulfilled the conditions, they are not eligible. He relies upon the decision in the case of CCE, New Delhi v. Hari Chand Shri Gopal [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m not convinced that this particular clause 3(b) is a condition to be fulfilled. Paragraph 3 relates to submission of an application and it requires that the registered premises of the service provider from which output services are exported should be in the jurisdiction of the concerned Dy. Commissioner. Therefore it cannot be considered as a condition to be fulfilled as regards exports to submit that export should have taken place from the registered premises. This clause has been inserted only for the purpose of taking a decision as to whom the refund claim should be filed. Even if it is taken as a condition, it cannot be read to mean that services should be exported only from the registered premises, there is no bar or prohibition in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t service provider to take the Cenvat credit. In fact it is a settled law that an assessee is entitled to Cenvat credit even when he has indulged in clandestine removal and he was not registered. In all cases where there has been evasion of service tax or central excise duty or there has been short-levy for whatever reason, the Tribunal and the Courts have taken consistent view that Cenvat credit would be admissible when the duty payment is made, provided assessee has all the documents and is able to show that input or input service has been received and utilized for the purpose specified in the Rules. That being the position, it cannot be said that just because the assessee was not registered, Cenvat credit could not have been taken. Once ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s regards Para 5, it is the submission of the learned AR that where there were domestic clearances, whether the refund has been calculated as per the ratio prescribed in this paragraph etc. When I see the order-in-original in Paragraph 3 of the order-in-original, the original authority has reproduced the deficiencies pointed out in the show cause notice. In Para 4 he has recorded submissions made by the appellant. In Para 5 he has rejected the refund claim. His observation is that the Cenvat procedure is being followed thereafter. Since there is no observation at all whatsoever and he has also not chosen to make an observation that he is not examining the submissions made by the appellant because the refund claim is being rejected only on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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