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Pioneer Hi Bred Private Limited V/S CCT, CE & ST, Medchal GST


Company & Directors' Information:- CE-N (INDIA) PRIVATE LIMITED [Strike Off] CIN = U72900PN2012PTC145470

Company & Directors' Information:- HI-BRED (INDIA) PRIVATE LIMITED [Active] CIN = U74899DL1965PTC004516

Company & Directors' Information:- GST PRIVATE LIMITED [Strike Off] CIN = U27104MH2002PTC136410

Company & Directors' Information:- PIONEER HI-BRED (INDIA) PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC066254

Company & Directors' Information:- PIONEER CO PVT LTD [Strike Off] CIN = U65921CT1964PTC000994

Company & Directors' Information:- PIONEER INDIA PRIVATE LIMITED. [Strike Off] CIN = U24299DL1985PTC022842

Company & Directors' Information:- PIONEER HI-BRED PRIVATE LIMITED [Active] CIN = U74900TG2014FTC093238

    Appeal No. ST/30143/2018 (Arising out of Order-in-Appeal No. HYD-EXCUS-001-AP2-0226-17-18-ST, dated 09.11.2017 passed by Commissioner(Appeals-III) GST & CE, Hyderabad) and Final Order No. A/30562/2018

    Decided On, 11 May 2018

    At, Customs Excise Service Tax Appellate Tribunal Regional Bench Hyderabad

    By, THE HONORABLE JUSTICE: M.V. RAVINDRAN
    By, MEMBER

    For Petitioner: Puneet Bansal, Advocate And For Respondents: B. Guna Ranjan, Superintendent/AR



Judgment Text


1. This appeal is directed against Order-in-Appeal No. HYD-EXCUS-001-AP2-0226-17-18-ST, dated 09.11.2017.

2. Heard both sides and perused the records.

3. On perusal of records, it transpires that the issue is regarding rejection of refund claim of Rs. 14,94,636/- on the grounds that the operations were carried out at different locations and which were not registered in the Centralised registration; denial of refund of Rs. 6,35,422/- on the ground that invoices issued by the Service Provider were not in the name of appellant.

4. Appellant herein is an exporter of services and was availing CENVAT credit of various input services; he had different locations in Hyderabad and have a centralised registration at Somajiguda, Hyderabad. They availed the CENVAT credit of service tax paid on various services at different locations which were taken on hire/rent by them from land owners. It is the case of Revenue that since these premises were not registered with the service tax department and requirement of registration is a must to avail the CENVAT credit and refund thereof in the case of export units, the refund applications were denied by both the lower authorities.

5. The first appellate authority in the impugned order in respect of the refund amount of Rs. 14,94,636/- has recorded specifically that export of output services took place from locations where unregistered premises were located and the judgment of Hon'ble High Court of Karnataka in the case of mPortal India Wireless Solutions Private Limited vs. CST : 2012 (27) STR 134 (Kar.)] is not applicable and as regards refund of Rs. 6,35,422/- in addition to the finding that the premises were not registered, he has recorded that the invoices contain the name of another person i.e. Pioneer Overseas Corporation. As regards refund amount of Rs. 14,94,636/-, there is no dispute as to the fact that the locations from where the services were exported by the appellant were to the account of this appellant only and the premises from where the services were exported are in existence and the input services were received at such premises, is a question of fact that it is undisputed in both the issues.

6. If that be so, Ld. First appellate authority was in error in not following the law settled by Hon'ble High Court of Karnataka in the case of mPortal India Wireless Solutions Private Limited (supra). Their Lordships in para Nos. 6 to 8 held as under:

(6). The assessee is a 100% export oriented unit. The export of software at the relevant point of time was not a taxable service. However, the assessee had paid input tax on various services. According to the assessee a sum of Rs. 4,36,985/- is accumulated Cenvat credit. The Tribunal has categorically held that even though the export of software is not a taxable service but still the assessee cannot be denied the Cenvat credit. The assessee is entitled to the refund of Cenvat credit. Similarly insofar as refund of Cenvat credit is concerned, the limitation under Section 11B does not apply for refund a accumulated Cenvat credit. Therefore, bar of limitation cannot be a ground to refuse Cenvat credit to the assessee.

(7). 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 for refund on the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside.

(8). That does not mean that the assessee is entitled to refund as claimed by him consequent to setting aside these orders. As is clear from the order of the original authority in the show cause notice, they have categorically called upon the assessee to furnish the particulars of the taxes paid on input services. They called upon the assessee to produce the invoices, bills, receipts to substantiate their claim for their verification. The assessee would be entitled to the refund of the Cenvat credit only on his proof that he has paid input Service tax.

7. Similar view was expressed by Hon'ble High Court of Madras in the case of CST Chennai [2017 (3) GSTL 45 (Mad.)]; Hon'ble High Court of Allahabad in the case of CCE vs. Curadev Pharma (P) Ltd : 2017(7) GSTL 269 (All.)] is so held that for claiming refund under notification No. 5/206-CE, there is no condition precedent for availing credit merely for the reason that premises were not registered, benefit cannot be denied. Identical views have been expressed by Hon'ble High Court of Madras in the case of Commissioner of GST & CE vs. BNP Paribas Sundaram Global Securities Operations Pvt. Ltd. [2018(2) TMI 1416-MADRAS HIGH COURT)].

8. On the face of such overwhelming judicial pronouncements on the issue, I find that the impugned order needs to be set aside and I do so.

9. As regards refund of an amount of Rs. 6,35,422/- on another ground for rejection that the invoices were in the name of Pioneer

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overseas Corporation. It is on record and undisputed that the business activity of Pioneer Overseas Corporation has been transferred to appellant by business transfer agreement w.e.f. 01.01.2015 and the reasoning given by the appellant that few vendors could not update their records with new address is an acceptable reason, on the face of the fact that there is no dispute as to the receipt of input services and the export of services from the premises in the name of appellant herein. 10. In view of the above, impugned order is set aside and appeal stands allowed with consequential relief.
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