At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Bangalore
By, THE HONORABLE JUSTICE: S.S. GARG
For Petitioner: N. Jagadish, Superintendent (AR)
1. These two appeals have been filed by the Revenue against the common impugned order dt. 04/11/2016 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has allowed the refund on certain input services by holding the same as input services and denied refund in respect of certain services viz. photography services and works contract service. Further the Commissioner (Appeals) has also held that the respondents are eligible for refund on input service invoices addressed to premises other than the registered premises. The issue involved in both the appeals is identical and hence they are disposed of by this common order.
2. Briefly the facts of the present case are that the respondent is registered as service provider for various categories of services such as Business Support Services and Works Contract Service. The respondent has filed a refund claim on 27/12/2012 as per Notification No. 5/2006-CE(NT) dt. 14/03/2006, for refund of Rs. 45,79,412/- on unutilised CENVAT credit of service tax said to have been paid by them, on the input services availed by them for the service exported for the period January 2012 to March 2012. On verification of the refund claim it was observed that the respondents are registered for a single premises in Bangalore, whereas the input invoices submitted with the claim have been raised to various addresses in Maharashtra i.e. Pune, Kolhapur etc. The Assistant Commissioner of Central Excise, E-1 Division, Bangalore vide Order-in-original No. 62-R/2013 dt. 16/12/2013 held that it is statutory and mandatory requirement for the premises from which service is provided to be registered as per Notification No. 5/2006-CE(NT) dt. 14/03/2006 read with Rule 5 of CENVAT Credit Rules, 2004 and Export of Service Rules, 2005 and rejected the refund of Rs. 15,98,901/-. Aggrieved by the Order-in-Original, the assessee filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals) vide the impugned order held that the rejection of refund by the lower authority in respect of input service invoices addressed to premises other than registered premises is not sustainable and is liable to be set aside. The Commissioner (Appeals) allowed the refund on input service invoices. Aggrieved by this findings, the Revenue has filed these two appeals.
3. Heard the learned AR. None appeared on behalf of the respondent. Hence I proceed to decide the appeals with the help of learned AR and perusal of records.
4. Learned AR for the Revenue has submitted that the impugned order allowing refund on input service invoices addressed to the premises other than the premises registered is not sustainable in law. He further submitted that the Commissioner (Appeals) has wrongly relied upon the judgment of the High Court of Karnataka in the case of mPortal (India) Wireless Solutions Pvt. Ltd. Vs. CST, Bangalore [2012 (27) STR 134 (Kar.)] wherein the Karnataka High Court has held that for availing the CNEVAT credit on input services, registration is not mandatory. He further submitted that the judgment in the case of mPortal (India) Wireless Solutions Pvt. Ltd. has been accepted by the Department on monetary limit and not on merits. He also submitted that similar issues are pending before the Hon'ble Supreme Court in the case of CST, Noida Vs. Samsung India Electronics Pvt. Ltd. [2017-TIOL-339-SC-CX] and CST, Noida Vs. Atrenta India Pvt. Ltd., Noida [2016-TIOL-2741-HC-ALL-ST], but no stay has been granted.
5. After hearing the learned AR and perusal of the impugned order, I find that there is no infirmity in the impugned order. The Commissioner (Appeals) has rightly relied upon the judgment of the High Court of Karnataka in the case of mPortal (India) Wireless Solutions Pvt. Ltd. (supra) wherein it has been held that there is no condition for availing CENVAT credit of input services, there is no condition for obtaining prior registration. In para 13 of the impugned order, the Commissioner (Appeals) has observed as under:-
13. Regarding the submissions that the sanctioning authority had held that the appellants are not eligible for refund on input service invoices addressed to premises other than the registered premises of the appellant. In this regard, I find that the issue is covered by the judgment of the Hon'ble Karnataka High Court in the case of mPortal (India) Wireless Solutions Pvt. Ltd. Vs. The Commissioner of Service Tax, Bangalore reported : 2012 (27) STR 134 (Kar) wherein it is held that insofar as requirement of registration with the department as a condition precedent for claiming Cenvat Credit is concerned, learned counsel appearing for both parties were unable to point out any provision in the Cenvat Credit Rules which impose such restriction. 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 entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim f
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or refund on the ground which is not existent in law. Therefore, in view of the said judgment, I hold that rejection of the refund by the lower authority on this ground is not sustainable and is liable to be set aside. I also observe that Rule 3 of Cenvat Credit Rules provides that the service provider shall be allowed to take credit of input services but there is no condition of obtaining prior registration. 6. In view of my above discussion, I do not find any infirmity in the impugned order which is upheld by dismissing both the appeals of the Revenue.