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TMI Blog2015 (4) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... finition under Rule 2 (P) ibid. Thus it is evident that prior to 6.5.2008 the appellants were not exporting any output service and therefore Rule 5 itself is not applicable in their case. Decision in the case of mPortal India Wireless Solutions.(P) Ltd [2011 (9) TMI 450 - KARNATAKA HIGH COURT] and [2010 (7) TMI 92 - CESTAT, BANGALORE] distinguished. Cenvat credit is governed only and only by Cenvat credit Rules and therefore the above observation of CESTAT that this benefit is apparently not limited by provisions of Cenvat Credit Rules is devoid of any basis at all. In any case, as CESTAT itself observed that this plea was not taken by the appellant and having regard to the fact that CESTAT also gave this finding rather tentatively, as is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) for the prior October 2007 to 16/5/2008 is not legal because they had actually paid service tax on the inputs services utilized for export of information technology software service which was not taxable during the disputed period. They citied the judgement dated 23.9.2011 of Hon'ble Karnataka High Court in the case of mPortal India Wireless Solutions (P) Ltd Vs. C.S.T. in the CEA No. 6/2011. The appellants also referred to the Circular of the Board 54/2004-Cus dated 13/10/2004 which in Para 4 clarified as under:- At present, EOUs (including STP/EHTP units) are allowed to import as well as procure goods from domestic tariff area without payment of duty. Therefore, there was no necessity for extending CENVAT credit facility to them. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 ibid refund of Cenvat credit is allowed only in respect of input services used in providing "output service" which is exported. "Output service" during the relevant period was to mean a "taxable service" as per definition under Rule 2 (P) ibid. Thus it is evident that prior to 6.5.2008 the appellants were not exporting any "output service" and therefore Rule 5 itself is not applicable in their case. Notification 5/2006-CE(NT) which was issued under Rule 5 ibid allows refund of Cenvat credit "in respect of input or input services used in providing "output service" which has been exported without payment of service tax." In the present case, as discussed above, the appellants were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere justified in refusing to grant refund of Cenvat credit to which the assessee was legally entitled only on the ground that the assessee was not registered with the department. It is needless to say that this is not an issue in the present case and therefore, the said judgment of Hon'ble Karnataka High Court has no applicability to this case. I have also perused the judgment of CESTAT in the case of mPortal India Wireless Solutions (P) Ltd, Vs. C.S.T. Bangalore 2010-IST-513-CESTAT-Bang. In that judgment CESTAT notes in one place as under:- Obviously the policy of the Government is to allow STP units like the appellants Cenvat credit of duty/service tax paid on inputs/input services. This benefit is apparently not limited by provision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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