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TMI Blog2023 (5) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... egistration not compulsory for refund. The denial of CENVAT Credit for non-registration of premises is not justified in the facts of these appeals. Availment of credit which is not due during the quarter - Whether the respondent-assessee can avail CENVAT Credit on inputs or input services before payment of tax thereon and also before the date of invoice? - HELD THAT:- The respondent had availed CENVAT Credit to the tune of Rs.18,169/- prior to the date of payment of tax, i.e., the CENVAT Credit was availed for the refund claimed from April 2013 to June 2013 when the Service Tax was paid on 04.07.2013. The respondent has admitted that it is a procedural lapse, but their substantive right cannot be taken away when there is no dispute as to the eligibility of CENVAT Credit of Service Tax paid and when conditions like payment of tax and receipt of service have been found to be satisfied. Reliance is placed by the Learned Advocate for the respondent on the decision rendered in the case of COMMISSIONER OF CENTRAL EXCISE, SURAT-II VERSUS WHITE EN-ALL PVT. LTD. [ 2003 (10) TMI 533 - CESTAT, MUMBAI] wherein it was held that It is not in dispute that, the goods are duty paid, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain portion on account of certain invoices not being submitted within the limitation period of one year in terms of Section 11B of the Central Excise Act, 1944 and also availment of CENVAT Credit on account of non-registration of premises as well as availing CENVAT Credit on certain invoices even before payment of Service Tax. 2. It is to be noted that there is a change in the respondent s name from Ad2pro Media Solutions Private Limited to Ad2pro Global Creative Solutions Private Limited . Miscellaneous petitions have been filed by the respondent to this effect requesting for change in the cause-title. The above request was acceded to and the petitions for amending the cause-title are allowed, as prayed for. 3.1 The details of the appeals are summarized below: - S. No. Appeal No. OIA No./ date OIO No./ date Period Involved Date of refund claim Refund claimed (in Rs.) Refund sanctioned (in Rs.) Refund amt rejected (in Rs.) (1) (2) (3) (4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jection of the refund claims filed. The refund sanctioning authority has disallowed credit to an extent of Rs.14,50,865/- of input tax credit on account of: (a) non-registration of premises, (b) Service Tax payment being made beyond the three-month period in terms of Rule 4(7) of the CENVAT Credit Rules, 2004 and (c) CENVAT Credit taken before the date of payment of Service Tax. 4.1 We have noted that in the impugned order, it was held that the date of receipt of payment in convertible foreign exchange where provision of service has been completed should be the relevant date in terms of Section 11B of the Central Excise Act, 1944, thereby allowing the appeals filed by the respondent-assessee. 4.2 The respondent has contended that in respect of late payment of tax on import of service under reverse charge mechanism on the Challan No. 10183 dated 04.07.2013 for Rs.14,25,948/- and with regard to the invoices pertaining to M/s. Dun Bradstreet Information Services India Pvt. Ltd., the receipt and utilization of the said services, in or in relation to their output service or the Service Tax paid or the nature of the services was not at all in dispute. It was put forth that it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich every manufacturer / assessee / service provider comes under the ambit of the Central Excise Act / Finance Act in order to avail any substantial benefits like CENVAT Credit given under the statute; registration is undoubtedly a pre-requisite. Hence, the assessee has failed to take up registration as per Section 69 of the Finance Act, 1994 read with Rule 4(1) of the Service Tax Rules, 1994, rendering them ineligible for CENVAT Credit on input services accumulated prior to their registration. It is also the contention of the Department that the issue involved in these appeals is not a mere technical lapse; in order to deserve any substantive benefit of any Act or Rule, the person claiming such substantive benefit has to strictly follow the conditions and procedures prescribed therein. Reliance in this regard has been placed on the decision of the Division Bench of the Hon'ble Madras High Court in the case of Commissioner of Central Excise Coimbatore v. M/s. Sutham Nylocots [2014 (306) E.L.T. 255 (Mad.)] wherein it was observed that credit is accrued only after the date of registration. 8.1 Ms. Shrayashree T., Learned Advocate representing the respondent, has submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 013, should be treated as eligible CENVAT Credit and as part of the Net CENVAT Credit . 9.0 Learned Authorized Representative Smt. Sridevi Taritla (Addl. Commissioner), representing the Department, has reiterated the grounds-of-appeal. She has conceded regarding the relevant date under Section 11B of the Central Excise Act, 1944 as not the date of export invoices, but the date of receipt of FIRCs. 9.1 She has contended that the assessee would not be entitled to avail the benefit of any scheme under the Act or Rule even before its registration and also before payment of tax thereon. 10. We have heard both sides and perused the records as available in these appeals. 11. We find that the Department came in appeal only on the following two issues: - (1) Whether the respondent herein is eligible to avail the CENVAT Credit on inputs / input services without registration of its premises? (2) Whether the respondent-assessee can avail CENVAT Credit on inputs or input services before payment of tax thereon and also before the date of invoice? 12.1 We find that the Hon'ble Madras High Court in the case of Commissioner of Service Tax-III, Chennai v. CESTAT, Chennai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax Appeal No. 40675 of 2016 (vide Final Order No. 41063 of 2018 dated 09.04.2018) and this Bench, after following the decision of the Hon ble High Court of Judicature at Madras in the case of Commissioner of Service Tax-III v. CESTAT, Chennai [2017 (3) G.S.T.L. 45 (Mad.)], has ruled in favour of the assessee. 8.2 In view of the above, we are of the view that the denial of refund for want of registration of the premises is bad. The impugned order to this extent cannot be sustained and consequently, the same is set aside. 12.4 So, we have to hold that denial of CENVAT Credit for non-registration of premises is not justified in the facts of these appeals. 13.1 Regarding premature availment of credit where substantive conditions to take CENVAT Credit are fulfilled, we find that the respondent had availed CENVAT Credit to the tune of Rs.18,169/- prior to the date of payment of tax, i.e., the CENVAT Credit was availed for the refund claimed from April 2013 to June 2013 when the Service Tax was paid on 04.07.2013. The respondent has admitted that it is a procedural lapse, but their substantive right cannot be taken away when there is no dispute as to the eligibility ..... X X X X Extracts X X X X X X X X Extracts X X X X
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