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TMI Blog2017 (4) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2017 - - - Dated:- 10-4-2017 - Mr. RAJIV SHAKDHER, AND Mr. R.SURESH KUMAR, JJ. For the Appellant : Mr.N.Senthil Kumar For the Respondents : Mr.G.Natarajan for R2 R1 Tribunal JUDGMENT (Judgment of the Court was made by Rajiv Shakdher, J.) 1.This is an appeal preferred by the Revenue against the judgment and order dated 05.07.2016 passed by the Customs, Excise and Service Tax Appellate Tribunal (in short, the 'Tribunal'). 1.1.The Revenue has referred following questions of law for our consideration: 1. Whether the decision of CESTAT i.e. Respondent No.1 in allowing refund of Cenvat credit even without registration is correct? 2. Whether CESTAT i.e. Respondent No.1 is correct in not considering the safe guards, conditions and limitations as stipulated in the Appendix to Notification No.05/2006- CE (NT) dated 14.03.2006? 3. Whether CESTAT i.e. Respondent No.1 is correct in applying the ratio of the judgment of the Hon'ble Karnataka High Court in the case of M/s. mPortal Wireless Solutions Private Limited when the said judgment was not accepted on merits but due to low revenue effect? 2.In order to adjudicate upon the appeal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the premises was mandatory for availing input service tax credit, the Assessee could not be denied refund of unutilized cenvat credit on input services. 6.In so far as the aspect concerning limitation was concerned, the Tribunal, remanded the matter to the adjudicating Authority, with a direction to verify the date of receipt of foreign exchange, in India, to determine the relevant date of export. 6.1.It is against that part of the order, whereby, the Tribunal has held that the refund could be granted to the Assessee, even, if, the premises in issue were not registered, which has led to the institution of the present appeal by the Revenue. 6.2.This aspect of the matter also emerges upon a perusal of the questions of law, which have been articulated by the Revenue, in its appeal, filed before us. 6.3. Furthermore, learned counsel for the Revenue also affirms before us, that the aspect of limitation has not been raised in the present appeal. 7. In so far as Question No.2 is concerned, it has not been pressed before us and rightly so, as it does not arise out of the impugned judgement and order. Though, it was not pressed before us during the course of arguments, we hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provider of output services is concerned, for making an application for refund of CENVAT Credit, he is required to file an application in the prescribed form, i.e., Form A, which is annexed to the notification, and the said application is required to be made to the Deputy Commissioner of Central Excise, or, the Assistant Commissioner of Central Excise, as the case may be. In so far as the jurisdiction of the concerned Officer is concerned, the same is fixed, in consonance with the location of the registered premises of the service provider, from which, the output service are exported. Furthermore, the application is required to be accompanied with a copy of the relevant invoices and a certificate from the bank, indicating therein, the realization of export proceeds. 7.3. Apart from the aforesaid, there is no limitation. Clearly, the notification does not prohibit the grant of CENVAT credit, even, if, the premises are not registered. The fixation of jurisdiction of the concerned officer, to whom, an application is to be made, by correlating it, with the location of the registered premises, cannot, to our minds, by implication, be read in a manner that it obliterates the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (zzp) of clause (105) of Section 65 of the Act may make an application for registration on or before the 31st day of March, 2005. (1A) for the purposes of sub-rule (1), the Central Board of Excise and Customs may, by an order specify the documents which are to be submitted by the assessee along with the application within such period, as may be specified in the said order. (2)Where a person, liable for paying service tax on taxable service,- (i) provides such service from more than one premises or offices; or (ii) receives such service in more than one premises or offices; or (iii) is having more than one premises or offices, which are engaged in relation to such service in any other manner, making such person liable for paying service tax, and has centralised billing system or centralised accounting system in respect of such service, and such centralised billing or centralized accounting systems are located in one or more premises, he may, at his option, register such premises or offices from where centralized billing or centralized accounting systems are located. (3) The registration under sub-rule (2), shall be granted by the Commissioner of Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , inter alia, provides that in case where a person is liable for paying service tax on a taxable services, who provides for such services from more than one premises, he may at his option register one or more premises or offices from where centralized billing or accounting is done. Once, the Assessee conveys his option to the concerned Authority, registration under Rule 4(2) of the 1994 Rules is granted by the Commissioner of Central Excise, within whose jurisdiction, such premises or offices are located. 8.6.A perusal of the Sub Rules(2) and (3)of Rule 4 of the 1994 Rules, on which, reliance is placed by the learned counsel for the Revenue, does not bring to fore any limitation, with regard to grant of refund, for unutilized cenvat credit, qua, export services, merely on the ground that the premises are not registered. 8.7.As a matter of fact, in this particular case, only the additional building, which was taken on lease and was located at Alwarpet, Chennai , was not registered. 9.The view that has been articulated above, is also taken by the Karnataka High Court in mPortal India Wireless Solutions (P) Ltd. Vs. Commissioner of Service Tax, Bangalore, 2012 (27) S.T.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Atrenta India Pvt. Ltd., 2017 (2) ADJ 590 , passed in Central Excise Appeal No.214 of 2016. The relevant portions of which, for the sake of convenience, are extracted hereafter: 12. Learned counsel for appellant has placed before us the rules made for refund of Cenvat Credit vide Notification:5/2006-C.E(N.T) dated 14.3.2006. The aforesaid rules have been framed in exercise of powers conferred by rule 5 of CENVAT Credit Rules 2004 and in supercession of earlier Notification. It provides that refund of Cenvat Credit shall be allowed in respect of: ....... 13. Rule 2 3 state that claim for refund would be submitted not once for any quarter in a calendar year and by manufacturer or provider of out put service by submitting an application in Form-A. The said rules are quoted as under: (2) The claims for such refund are submitted not more than once for any quarter that where, - (a) The average export clearances of final products or the output services in value terms is fifty percent or more of the total clearances of final products or output services, as the case may be, in the preceding quarter; or (b) The claim is filed by Export Oriented Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antiated before the First Appellate Authority that they are entitled to the claim for Cenvat Credit. This finding of the fact recorded by the First Appellate Authority has not been set at naught by the Tribunal rather no reasons have been given by the Tribunal for permitting the credit to be availed by the assessee. (emphasis is ours) 14.1. According to us, the said judgment is distinguishable on facts. 14.2.The Court, in the said case, was dealing with the provisions of Section 11AB of the Central Excise Act, 1944. 14.3.Furthermore, as is clearly evident from the observations made in paragraph 17, refund was denied, as findings of fact had been returned against the Assessee by the First Appellate Authority, to the effect, that proof of fulfillment of conditions statutorily stipulated for claiming refund, such as, duty paid, nature of inputs, use of duty paid inputs, in the manufacture of dutiable finished goods, was not provided, in order to substantiate the claim for cenvat credit. 14.4.In the present case, there is no dispute that the Assessee, has to its credit unutlized cenvat credit. Therefore, unlike, the facts obtaining in Sutham Nylocots , there is no dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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