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TMI Blog2019 (2) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... ted liberally. There is no dispute that lapse is there on the part of the Appellant but it is merely procedural lapse and due to that substantive benefit of Cenvat Credit cannot be denied to the Appellant - Rule 14 of the Cenvat Credit Rules, 2004 provides for recovery of Cenvat credit wrongly taken. The Appellant is entitle for input credit, therefore the said Rule 14 is not applicable on the facts of the case. Appeal allowed - decided in favor of appellant. - APPEAL NO: ST/87577/2018 - A/85280/2019 - Dated:- 12-2-2019 - Shri Ajay Sharma, Member (Judicial) Appellant: Shri Mahesh Raichandani, Advocate Respondent: Shri O.M. Shivdikar, Assistant Commissioner (A.R.) ORDER The instant Appeal has been filed from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has cited the same decision before the ld. Commissioner, which has been recorded in the impugned order, but there is no finding on the same. He further submitted that both the authorities below, while rejecting the claim of the Appellant, have gone beyond the scope of show cause notice and erred in holding that if the Appellant does not opt for centralized registration, they were required to register the premises as Input Service Distributor under the provisions of the Service Tax (Registration of Special Category of Persons) Rules, 2005. According to the ld. Counsel, in the facts of the present case no penalty can be levied on the Appellant either under Rule 15(3) of Cenvat Credit Rules, 2004 or under Section 76/78 of the Finance Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia Wireless Solutions (P) Ltd. (supra) has been referred by the ld. Commissioner in the impugned order as the submission of the Appellant, but there is no finding on that. The Adjudicating Authority or the Appellate Authority, as the case may be, are suppose to deal with each and every submission raised by the Appellant and when it comes to the decision of the Hon ble Supreme Court/ High Court or of the Tribunal, they are bound to deal with the same. In the matter of mPortal India Wireless Solutions (P) Ltd. (supra) the question that arises for consideration of the Hon ble High Court was whether the authorities were justified in refusing to grant Cenvat credit to which the assessee was legally entitled to, only on the ground that he is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and perused the appeal records. Let me first take up the issue of denial of credit on the ground of nonregistration of premises. I find that this issue has already been settled by the Hon ble High Court of Karnataka in the case law relied upon by learned counsel in the case of mPortal India Wireless Solutions (P) Ltd. v. CST, Bangalore - 2012 (27) S.T.R. 134. The said Karnataka High Court s decision was followed by this very Bench vide Final Order Nos. 40917- 40922/2016 [ST/40887 to 40892/2015], dated 9-6-2016 [2016 (45) S.T.R. 242 (Tribunal)] in the case of KLA Tencor Software India Private Ltd. v. CST, Chennai-III. The relevant paragraph of this Bench order is reproduced as under :- 7. With regard to issue (i), the contention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that has been relied on by the appellant is that of Dorling Kindersley (I) Pvt. Ltd. v. CCE ST, Noida (supra) which is also on the aspect of denial of refund claim on the ground of non-registration and the same was held to be unsustainable. Following these judicial precedents, the first issue is answered in favour of the appellant holding that even though they were not registered prior to 16-6-2008, they are eligible for refund of the unutilized credit which was accumulated prior to registration. xxx xxx xxx 8. As regards denial of refund on renting of immovable property service on account of non-registration of the premises, I find that the law is well settl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Cenvat Credit Rules which prescribes that registration of premises is a condition precedent for claiming Cenvat credit and in its absence the claim has to be rejected. There is no such restriction in the Cenvat Credit Rules and in particular Rule 9 which has been relied upon by the Revenue. In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitle to the benefit of refund, both the authorities below have committed an error in rejecting the claim for refund on the ground which is not existence in law. There is no doubt that it is a beneficial provision and it is settled legal principle that any beneficial provision should be interpret ..... X X X X Extracts X X X X X X X X Extracts X X X X
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