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TMI Blog2017 (3) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... tal India Wireless Solutions Pvt Ltd v. Commissioner of Service Tax, Bangalore [2011 (9) TMI 450 - KARNATAKA HIGH COURT] - the issue in hand is squarely covered by the above decision - credit allowed - appeal allowed - decided in favor of appellant. - ST/86286/2016 - A/85993/17/SMB - Dated:- 25-1-2017 - Shri M V Ravindran, Member (Judicial) Shri Mehul Jivani, Chartered Accountant for the appellant Shri B Kumar Iyer, Superintendent (AR) for the respondent ORDER This appeal is directed against Order-in-Appeal No: MUM-SVTAX-002-APP-184-15-16 dated 26/02/2016 passed by the Commissioner of Service Tax (Appeals) II, Mumbai. 2. Heard both the sides and perused the records. 3. On perusal of the records it transpires that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the refund under Rule 5 of the Central Excise Rules on the ground that the service provided by the appellant is exempted under Notification No. 8/2003-ST, while not accepting the stand of the department, the Tribunal in para No. 6 and 8 held as under: 6. The period of dispute in this case is from 1-4-2005 to 28-2-2006. The point of dispute is as to whether the appellant would be eligible for Cenvat credit of ₹ 4,95,56,617/- availed by them in respect of various input service used in or in relation to the providing of Call Centre Service and BPO service which had been exported. The appellant s claim is that during the period of dispute no Cenvat credit had been taken in respect of input services used in or in relation to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rule 6 of the Cenvat Credit Rules, 2004, the appellant would not be eligible for Cenvat credit of the service tax paid on the input services used in or in relation to providing these services and therefore, Rule 5 of the Cenvat Credit Rules would not be applicable at all. 7. xxxxx 8. So far as the Call Centre Service (Business Auxiliary Service) provided to overseas clients is concerned, there is no dispute that this is taxable service under Section 65(105)(zzb) read with Section 65(19) of the Finance Act, 1994 and the same was fully exempt from service tax during the period of dispute in terms of exemption Notification No. 8/2003-S.T., The question as to whether the appellant would be eligible for Cenvat credit in respect of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exemption notification, has been considered by the Hon ble Bombay High Court in case of Repro India Ltd. v. Union of India reported in 2009 (235) E.L.T. 614 (Bom.) and also by the Hon ble High Court of Himachal Pradesh in the case of CCE v. Drish Shoes Ltd. reported in 2010 (254) E.L.T. 417 (HP) wherein the Hon ble High Court has held that in such cases, input duty Cenvat credit would be admissible to the manufacturer/exporter in terms of Rule 5 of the Cenvat Credit Rules, 2004 and this credit can either be utilized by him for payment of duty on the goods cleared for home consumption and on his inability to utilize the Cenvat credit in this manner, the same would be refundable to him in cash in terms of this Rule, notwithstanding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jected the refund claim filed by the assessee on the ground that copy of the assessee registration certificate on the service tax is not submitted. He has also not submitted the details as called for in the show cause notice. They have claimed Cenvat credit on inputs but have not submitted the details/nature of services utilized. Some of the input services appear to be telephone services, security, consultancy, software development, manpower recruitment/placement services. 3. The assessee is engaged in the export of software which is not a taxable service during the claim period as per the Finance Act, 1994. For the aforesaid reasons the refund of Cenvat credit was not allowed. Further, it was held the claim up to September, 2006 is ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Cenvat credit. The Tribunal has categorically held that even though the export of software is not a taxable service but still the assessee cannot be denied the Cenvat credit. The assessee is entitled to the refund of Cenvat credit. Similarly insofar as refund of Cenvat credit is concerned, the limitation under Section 11B does not apply for refund a accumulated Cenvat credit. Therefore, bar of limitation cannot be a ground to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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