9911796707
TMI Blog2018 (6) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... Service. Respondent filed refund claim with Assistant Commissioner of Service Tax, Division III, for ₹ 71,39,495/- for the service tax paid on input service tax credit taken during the period October 2012 to December 2012 under Rule 5 of the CENVAT Credit Rules, 2004. The adjudicating authority sanctioned a refund of ₹ 42,06,199/- and rejected the remaining amount, on the ground of Non-Registration of premises and ineligible CENVAT credit on Car parking charges. The adjudicating authority rejected refund on CENVAT credit on the following services, for the reasons stated in the following Table, in the Order-in-Original No.32 of 2015 dated 30.10.2015. S. No. Refund of CENVAT Credit claimed on Rejected amount (Rs.) Reasons for rejection 01 Event Management Service 40417 Not an input service as per Rule 2(I) of CENVAT credit Rules 02 Car Parking Charges 111240 03 Other services like entertainment, T-Shirt, printing etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals) observed that in respect of the premises at Mumbai and College Road, Chennai that the assessee had not produced any Registration Certificate for these premises. Hence, upheld the disallowance of CENVAT credit to these premises. 5. In respect of Car parking charges, Commissioner (Appeals) observed that the parking area cannot be considered as a separate area and it is a part of the premises occupied by the respondent. He also held that the service tax paid on the rental charges is eligible for CENVAT credit, then service tax paid on the car parking charges is equally eligible for CENVAT credit and set aside the disallowance of CENVAT credit and upheld the disallowance of CENVAT credit in respect of Event Management service. 6. While the decision of the Commissioner (Appeals) allowing the credit in respect of Car Parking Charges was found acceptable, the decision in respect of credit availed on the inputs received in the premises which was not registered prior to export, but subsequently obtained Registration was found to be not legally correct and hence the Department filed an appeal before CESTAT. 7. Contentions of the appellant herein were not accepted by CES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Service Tax Vs. Atrenta India [2016-VIC-713-ALH-ST] has upheld the decision of the Tribunal that refund could be granted to the assessee even if the premises in issue were not registered. In our opinion, the judgment of the jurisdictional Hon'ble High Court is fully applicable to the facts and issue involved in respect of all these appeals before us. 8. In the event, respectfully following the judgment of the Hon'ble High Court of Madras in Scioinspire Consulting Service (India) Pvt. Ltd.(supra), we have no hesitation whatsoever in dismissing all these appeals filed by the department. Ordered accordingly. 5. As there are no new facts and circumstances, that has been pointed out in the present case, we follow the ratio already laid down in the above said final order of the tribunal and dismiss the appeal of the department. 8. Aggrieved over the same, instant Civil Miscellaneous Appeal is filed on the following substantial questions of law. 1. Whether the decision of Customs, Excise Service Tax Appellate Tribunal, South Zonal Bench, Chennai (CESTAT for short) in allowing refund of CENVAT credit even without registration is correct? 2. Whether CES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of debarment to make refund, in other cases that is permissible. Refund results in outflow from treasury, which needs sanction of law and an order of refund for such purpose is sine qua non. Law has only recognized the event of export of goods for refund of Modvat credit as has been rightly pleaded by Revenue and present reference is neither the case of otherwise due of the refund nor the case of exported goods. Similarly absence of express grant in statute does not imply ipso facto entitlement to refund. So also absence of express grant is an implied bar for refund. When right to refund does not accrue under law, claim thereof is inconceivable. Therefore, present reference is to be answered negatively and in favour of Revenue since refund of unutilized credit is only permissible in case of export of goods and for no other reason whatsoever that may be . From the above, it may be seen that the facts of the above case, ie. absence of express grant in statute does not imply ipso facto entitlement to refund applies to the present case also. (v)The Hon'ble CESTAT, had fallen into error by stating that the respondent was entitled to credit and refund in view of non-taxability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd adverting to the submissions duly supported by the grounds of challenge, we are of the view that the issue is no longer res integra and is covered by a decision of this Court in Commissioner of Services Tax-III, Chennai Vs. M/s. Scioinspire Consulting Services India Private Limited, Chennai and another, in C.M.A.No.860 of 2017, wherein the following substantial questions of law were framed:- 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 effects? 12. While dealing with Question No.2, the Hon'ble Division Bench, in CMA No.860 of 2017 dated 10.04.2017, ordered as hereunder: 7. In so far as Question No.2 is concerned, it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long with a copy of the invoice and a certificate from the bank certifying realization of export proceeds. 7.2. A bare perusal of the clause would show that in so far as 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 14. After considering the provisions, relevant notifications and decisions in M/s.mPortal India Wireless Solutions Private Limited V. Commissioner of Service Tax, Bangalore, reported in 2012 (27) S.T.R.134 (Kar.); in Commissioner of Service Tax V. Tavant Technologies India Private Limited, reported in 2016 (3) TMI 535; in Commissioner, Service Tax Commissionerate V. Atrenta India Private Limited, reported in 2017 (2) ADJ 590; and in Commissioner of Central Excise, Coimbatore Vs. Sutham Nylocots, reported in 2014 (306) E.L.T. 255 (Mad), a Hon'ble Division Bench, answered the above said substantial questions of law, raised therein, against the revenue. 15. As facts and grounds of challenge are duly covered ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
