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TMI Blog2021 (11) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... t for filing in one month or three months without which refund claim should be refused - answered in the affirmative and in favour of the appellant. Rejection on the ground that the appellant did not avail registration with the department for the period during which invoices were raised - HELD THAT:-The registered premises is to be situated within the territorial jurisdiction of the Deputy/Assistant Commissioner before whom Form A application was to be filed. In the case of the applicant, as reveals from case record and admitted by both the parties, appellant got registered with retrospective effect from 11.08.2009 and the first refund application was filed on 30.08.2009 i.e. after the registration was completed. It is, therefore, immaterial to examine the date of invoices if raised before the registration date as there is no such stipulation or conditionality in Notification No. 5/2006-C.E. (NT) or to say Circular No. 120/01/2010-ST. - Further in the case of MPORTAL INDIA WIRELESS SOLUTIONS (P.) LTD. VERSUS COMMISSIONER OF SERVICE TAX [ 2011 (9) TMI 450 - KARNATAKA HIGH COURT] it has been clearly held that registration is not a requirement for filing refund claim - refund ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on order. 2. Both the appeals pertain to rejection of refund claim to the appellant service provider. For the period from September, 2008 to March, 2009, appellant s claims for refund of ₹ 16,43,339/- and claim for ₹ 8,21,432/- for the period from April, 2009 to September, 2009, which were rejected by the adjudicating authority and Commissioner (Appeals) are challenged in this Tribunal in appeal No. ST/89857/2018 and its rejection claim for ₹ 7,39,219/- for the period from October, 2009 to March, 2010 and April 2010 to September, 2010 that was rejected through Order-in-Original and Order-in-Appeal is assailed here though appeal No. ST/89890/2010. The grounds on which both the refund claims were rejected are summarised below. In appeal No. ST/89857/2018, the grounds of rejection were (i) Refund claim filed more than 3 months in a single claim application. (ii) Appellant did not avail registration with department. (iii) For the claim period no ST-3 return was filed. In appeal No. ST/89890/2010, the grounds of rejections are summarised below. (i) Refund claim filed more than 3 months in a single claim application. (ii) Services allegedly exported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal of appeal No. ST/89857/2018 that appellant did not avail registration with the department for the period during which invoices were raised has been contested by both the parties. Learned Counsel for the appellant, with reference to the leading case mPortal India Wireless Solutions Pvt. Ltd. Vs. CST, Bangalore [2012 (27) STR 134 (Kar.)] along with others, tried to justify that registration with department is not a pre-requisite to claim refund. Learned Authorised Representative for the Respondent-Department submitted that the said judgment had not taken note of Circular No. 120/01/2010-ST and Notification No. 5/2006-C.E. (NT) dated 14.03.2006 for which it cannot be said that ratio on this issue has been set by that decision of the Hon'ble Karnataka High Court. Be that as it may, in the Appendix under para no. 3(b) it has been mentioned that application in Form A seeking refund is to be filed before the Deputy/Assistant Commissioner of Central Excise in which jurisdiction the registered premises of the service provider, from which output service were exported is situated, along with a copy of the invoices and a certificate from the bank certifying realisation of export proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als)/ME/41/2018- 19 dated 17.08.2018. 6. In respect of the other appeal No. ST/89890/2018 additional grounds of rejection as enumerated in the order is that services exported by the appellant was not used outside India and some of the input services like rent-a-cab and club or association services were not having any nexus to export and some invoices raised in the old address and some were time barred. Viewpoints of both the parties are noted in their written submissions in respect of the issue concerning services expected were not used in outside India. It can be said that during the relevant period, as per Export Service Rule, 2005 if service recipient is situated outside India and the consideration has been receipt in convertible foreign exchange it would satisfy the definition of export of services. This fact had been fortified by the decisions relied upon by the appellant namely FIL Capital Advisors (I) P Ltd. Vs. CST [2015 (40) STR 543 (Tri.- Mumbai)], AMP Capital Advisors India Pvt. Ltd. Vs. CST [2015 (40) STR 577 (Tri.-Mumbai)] and CST Vs. Greater Pacific Capital Pvt. Ltd. [2015 (38) STR 656 (Tri.-Mumbai)] etc. In respect of nexus between input and output services like r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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