Custom, Excise & Service Tax Tribunal
Commissioner Of Gst & Central Excise vs M/S. J Ray Mcdermott Engineering Pvt. ... on 7 March, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
ST/Misc./40800/2017 and ST/40352/2013
(Arising out of Order-in-Appeal No.155/2012 (MST) dated 30.10.2012 passed by the Commissioner of Central Excise (Appeals), Chennai)
Commissioner of GST & Central Excise
Chennai South Commissionerate Appellant
Vs.
M/s. J Ray McDermott Engineering Pvt. Ltd. Respondent
Appearance Shri K. Veerabhadra Reddy, JC (AR) for the Appellant None for the Respondent CORAM Honble Ms. Sulekha Beevi C.S., Member (Judicial) Honble Shri Madhu Mohan Damodhar, Member (Technical) Date of Hearing / Decision: 07.03.2018 Final Order No. 40581 / 2018 Per Bench Brief facts are that the respondents are engaged in provision of Engineering Design Services to its group entities and is a 100% EOU under STPI. They provide Business Process Outsourcing services to customers outside India and are also registered with the Service Tax Department with effect from 30.1.2008. They filed refund claim for the period April 2007 to March 2008 for refund of the unutilized credit under Rule 5 of CENVAT Credit Rules, 2004. After due process of law, the refund sanctioning authority rejected the claim on four grounds, namely (a) refund is hit by limitation; (b) exports are made prior to obtaining registration; (c) software services are exported and (d) credit is ineligible. In appeal, Commissioner (Appeals) held that the respondents are eligible for credit and also for refund and thus allowed the appeal filed by the respondent. Against such finding of the Commissioner (Appeals), the department has filed the present appeal.
2. On behalf of department, ld. AR Shri K. Veerabhadra Reddy submitted that the Commissioner (Appeals) erred in granting refund for the period prior to obtaining registration. The responding ought to have obtained registration prior to taking credit and therefore the credit itself is ineligible.
3. None appeared on behalf of the respondent even though notice of hearing was sent. The matter was taken up after hearing the ld. AR and after perusal of the records.
4. On going through the records, we find that the Commissioner (Appeals) has allowed the issue with regard to availment of credit before registration observing that it is merely a technical lapse. The issue whether respondent is eligible to avail credit before registration has been settled by the decision in the case of mPortal India wireless Solutions P. Ltd. Vs. Commissioner of Service Tax, Bangalore reported in 2012 (27) STR 134 (Kar.). Similar view was taken by the jurisdictional High Court in the case of Commissioner of Service Tax, Chennai Vs. CESTAT, Chennai reported in 2017 (3) GSTL 45 (Mad.).
5. Following the said decisions, we hold that there is no merit in the appeal filed by the department. The same is dismissed.
6. The miscellaneous application filed by Revenue for change of cause title is allowed.
(Operative portion of the order was
pronounced in open court)
(Madhu Mohan Damodhar) (Sulekha Beevi C.S.)
Member (Technical) Member (Judicial)
Rex
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