Custom, Excise & Service Tax Tribunal
M/S. Xavient Software Solutions (I) P. ... vs Cce, Noida on 27 September, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing : 27.09.2013
Date of Decision : 27.09.2013
ST/892/2010-ST[SM]
[Arising out of Order-in-Appeal No. 88/CE/APPL/Noida/2010 dated 22.03.2010 passed by the Commissioner (Appeal), Central Excise, Noida]
For Approval & Signature:
Honble Mr. Sahab Singh, Member (Technical)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether their Whether their Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
M/s. Xavient Software Solutions (I) P. Ltd. Appellant
Vs.
CCE, Noida Respondent
Appearance:
Shri Anil Tivari, Advocate - for the Appellant
Shri Sanjay Jain, AR - for the Respondent
Coram : Honble Mr. Sahab Singh, Member (Technical)
Final ORDER NO. 57803/2013
Per Sahab Singh :
This appeal is filed by M/s. Xavient Software Solutions (I) P. Ltd. (hereinafter referred to as appellants) against the Order-in-Appeal No. 88/CE/APPL/Noida/2010 dated 22.03.2010.
2. Brief facts of the case are that appellants are STPI 100% EOU unit having Customs Bonded License issued by the Department and are providing output services falling under the category of Information Technology Software to their clients abroad. They filed the refund claim amounting to Rs. 4,70,716/- under Rule 5 of the Cenvat Credit Rules, read with No. 05/2006 in respect of accumulated Cenvat Credit for their account. On scrutiny of the refund claim it was observed by the Department that appellants were not registered with the Department for providing of the taxable service. Accordingly Show Cause Notice was issued to them. The Show Cause Notice was adjudicated by the Assistant Commissioner vide order-in-original No. 84/2009 dated 20.10.2009 against the appellants. The Order-in-Original was challenged before the Commissioner (Appeal) who vide impugned order has rejected their appeal. The appellants are before me in this appeal.
3. Heard both sides.
4. Issue involved in the present appeal is rejection of refund by the lower authorities on the ground that during the period the input services were availed in respect of which refund is sought by the appellants, appellants were not registered with the Department and the refund was rejected on this ground only. I find that Honble High Court of Karnataka in case of mPortal India Wireless Solutions P. Ltd. as held as under:
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 statutory provisions 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.
5. Following the said decision of the Honble High Court of Karnataka, I find that a ground for rejecting the refund is not sustainable. Accordingly the Order-in-Appeal set aside and appeal is allowed.
(Sahab Singh) Member (Technical) Neha 1