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TMI Blog2016 (5) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... at the registration is not mandatory to fulfil the statutory grant in absence of any provisions to the contrary. In so far as the conditions of grant of refund is concerned, Rule 5 prescribes certain conditions which are safeguard in nature. We have no difference to state that the Notification No. 5/2006-CE (NT) dated 14.03.2006 as amended by Notification No. 13/2007 -CE (NT) dated 01.03.2007 shall be applicable to the case of Respondent. The condition prescribed by 3(b) in the appendix of Notification is necessarily to be fulfilled along with other conditions prescribed therein. Therefore, the Ld. adjudicating authority upon remanded of this matter shall carry out scrutiny of refund claim on above terms as well the conditions prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmission of Revenue is that when lthe respondent has claimed refund of the un-utilised cenvatable credit, it was to undergo scrutiny by Revenue, to determine eligibility to the refund, determination of quantum thereof and satisfaction of the conditions of the Notification. Respondent is also required to satisfy that there is no possibility of utilisation of the unutilised credit as well as the claim is not time barred. Added to this, the responded has to satisfy the Authority whether foreign exchange realisation was made by it as per Notification. The procedure thereto as required by the conditions prescribed under Clause 3 (b) of the appendix to the Notification issued under Rule 5 of Cenvat Credit Rules, 2004, is to be fulfilled. But resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that respondent was an exporter of services and it claimed that Cenvat credit was earned by it during its un-registered period. It has also not availed such credit for which refund thereof has been claimed under Rule 5 of Cenvat Credit Rules, 2004. 10. It is elementary principle of jurisprudence that every grant of the statute is governed by the provisions thereof and Rules made there under. Rule being part of the body of the statute, the provisions enacted in Section 11 B of Central Excise Act, 1944 dealing with provisions for processing the refund application through that route are equally applicable to the refund granted under Rule 5 of Cenvat Credit Rules, 2004. That cannot be ignored. This is the principle laid down by the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court of Karnataka in the case of mPortal India Wireless Solutions Pvt. Ltd. Vs. CST, Bangalore - 2012 (27) STR 134 (Kar.), has laid the law. Therefore, Respondent may not be denied such credit subject to scrutiny of genuiness thereof. The Hon ble High Court in para-7 of its judgment has held that the registration is not mandatory to fulfil the statutory grant in absence of any provisions to the contrary. The said para of the judgment is reproduced below for convenience of reading: 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 res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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