Custom, Excise & Service Tax Tribunal
M/S. Qualcomm India Pvt. Ltd vs Commissioner Of Service Tax 1St To 5Th ... on 20 January, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/13/2010-DB [Arising out of Order-in-Appeal No. 72/2009 dated 18/09/2009 passed by the Commissioner of Central Excise (Appeals-II), Bangalore.] For approval and signature: HON'BLE SHRI M.V.RAVINDRAN, JUDICIAL MEMBER HON'BLE SHRI ASHOK K. ARYA, TECHNICAL MEMBER 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes M/s. Qualcomm India Pvt. Ltd Plot No.125-127, EPIP Phase II, Whitefield, Bangalore. Appellant(s) Versus Commissioner of Service Tax 1ST TO 5TH FLOOR, TTMC BUILDING, above BMTC BUS STAND,DOMLUR BANGALORE 560 071. KARNATAKA Respondent(s)
Appearance:
Mr. Arun Agarwal, CA PDS LEGAL 14, MITTAL CHAMBERS, 1ST FLOOR, NARIMAN POINT, MUMBAI-400 021 For the Appellant Mr. N. Jagadish, Superintendent (AR) For the Respondent Date of Hearing: 20/01/2016 Date of Decision: 20/01/2016 CORAM:
HON'BLE SHRI M.V.RAVINDRAN, JUDICIAL MEMBER HON'BLE SHRI ASHOK K. ARYA, TECHNICAL MEMBER Final Order No. 20162 / 2016 Per : ASHOK K. ARYA, Both the sides have been heard.
2. The appellants are registered under STPI Scheme as a 100% Export Oriented Unit (EOU). They are engaged in providing Consulting Engineering Services and have got registration for paying Service Tax under the said service. The appellants have filed refund application for unutilized credit as per Notification No.5/2006-CE (NT) dated 14.3.2006 read with relevant provisions of Export of Service Rules, 2005 and the CENVAT Credit Rules, 2004.
3. The lower authorities rejected their refund claims as irregular and in contravention of CENVAT Credit Rules, 2004. The AR for Revenue argues that the appellants are engaged in the service of development of computer software and export of the same, whereas their Service Tax registration is under Consulting Engineering Services; the appellants have irregularly taken their credit and the refund claimed on the same is irregular. Revenue also argues that the refund claim is irregular as it is for the period prior to the date of registration. The learned CA appearing for the appellants have contested the Revenues arguments saying that the said arguments are technical in nature and the appellants are entitled to refund.
4. After considering the facts on records and the submissions of both the sides, it is found that prior registration cannot be taken as a pre-requisite for claiming the credit, and when the assessee got itself registered later; consequently later refund cannot be denied, when the services have been exported as per the provisions of Export of Service Rules, 2005. The Honble High Court in the case of mPortal India Wireless Solutions P. Ltd. vs. CST, Bangalore reported as 2012 (27) S.T.R. 134 (Kar.) has held that registration with the Department is not a pre-requisite for claiming the credit. The fact that the appellant was registered latter or was registered under a different category of service cannot be basis for rejection of refund as long as there is export of services. Consequently, the impugned order is set aside and the matter is remanded to the original adjudicating authority for examining the appellants submissions without raising the issue of requirement of prior registration or erroneous registration under different service category or such technical requirements. The appellants are to be given sufficient opportunity to present necessary documents/evidence in support of their refund claim(s) and it is directed that the refund claims be disposed of by the original adjudicating authority within a period of three months of receipt of this Order.
(Order pronounced in open court) ASHOK K. ARYA TECHNICAL MEMBER M.V.RAVINDRAN JUDICIAL MEMBER rv 3