Custom, Excise & Service Tax Tribunal
M/S. Aam Services India Pvt. Ltd vs Commissioner Of Central Excise & ... on 18 August, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT No. I Appeal No. ST/638/10 (Arising out of Order-in-Appeal No. P-III/VM/186/2010 dated 13.08.2010 passed by Commissioner of Central Excise, Customs and Service Tax (Appeals), Pune III) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) ================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
M/s. AAM Services India Pvt. Ltd.
Appellant Vs. Commissioner of Central Excise & Customs Pune III Respondent Appearance:
Shri D.R. Gadekar, Advocate for appellant Ms. P.V. Sekhar, Dy. Commissioner (AR) for respondent CORAM:
Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) Date of Hearing: 18.08.2015 Date of Decision: 18.08.2015 ORDER NO Per: M.V. Ravindran This appeal is directed against Order-in-Appeal No. P-III/VM/186/2010 dated 13.08.2010.
2. The issue in brief is that the appellant herein is a provider of services for the purposes of export and is situated in STPI unit with Software Technology Park and got registered on 28.11.2008. They filed refund claims of the service tax paid on the input services for the period April to September 2008. The said refund claims were processed and show cause notice was issued directing the appellant to show cause as to why the said refund claims should not be rejected on the ground that the refund claims have been preferred of the services received prior to registration. Appellant contested the show cause notice. Adjudicating authority did not agree with the contention raised by the appellant and rejected the refund claims. The first appellate authority also did not agree with the grounds raised by the appellant and rejected the appeal.
3. Learned Counsel submits that there is no dispute as to the fact that appellant has exported the services. It is his submission that the only reason for rejecting the refund claimd is that the appellant had claimed refund amount of the service tax paid on the services which were received prior to the registration. He would submit that the issue is now decided by the Honble High Court of Karnatka in the case of mPortal India Wireless Solutions P. Ltd. Vs. CST Bangalore 2012 (27) STR 134 (Kar.), Tribunals decision in the case of J P Kenny Ltd. V. CCE Delhi 2015-TIOL-782-CESTAT-DEL and Beico Industries Pvt. Ltd. V. CCE & ST, Vapi 2014 (36) STR 551 (Tri. Ahmd.)
4. Learned D.R. on the other hand would defend the order of the lower authorities and submit that there is no way of ascertaining whether the services which were received by the appellant prior to registration were utilized or otherwise. It is also his submission that the registration is required to confirm whether the appellant is filing the returns regularly with the authorities and ascertain the authenticity claim.
5. We have considered the submissions made at length by both sides and perused the records.
6. Undisputed facts are that the appellant herein is providing various services and is registered as a STPI unit with Software Technology Park, is registered with the department on 28.11.2008 and the services which are rendered by the appellant are for exports without payment of service tax. Because of continuous export of taxable services appellant was not in a position to utilize the CENVAT credit of service tax on the input services.
7. On this factual matrix, the findings recorded by the first appellate authority in the impugned order are as under:-
5. I have carefully considered the relevant records including the written and oral submissions made by the appellant. I find that the appellant has obtained the service tax registration on 28th November 2008 whereas they have filed a refund claim for the period from April 2008 to Sept. 2008. This clearly indicates that the appellant has filed a refund claim for the period prior to the date of their registration. The conditions for availing credit are mentioned in CCR 2004 of which Rule 3 clearly states that :Provider of a taxable service shall be allowed to take credit. In other words the service provider should have a legal status and only proper registration gives him the legal status to take credit. This fact has not been denied by the appellant. In parallel to their statements of facts they have clearly stated that they have taken registration on 28.11.2008 and raised cenvat credit of inputs service prior to registration. I find that as they are not a registered assessee of service tax they have no right to raise cenvat credit on input services prior to registration. Therefore, I hold that appellant is not eligible for refund claim for the cenvat credit of input service raised prior to registration. 7.1 It can be seen from the above reproduced paragraph that the only ground for rejection of the refund claim is that the appellant is not registered with the department. The above recorded findings of the first appellate authority and the submissions of the learned D.R. are incorrect and unsustainable as the Honble High Court of Karnataka in the case of mPortal India Wirless Solutions P. Ltd (supra) has settled the matter in para No.7 which we reproduce:-
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. 7.2 It can be seen from the above reproduced ratio of the issue, the issue is squarely settled in favour of the appellant and this view has been followed by various Benches of the Tribunal. Accordingly, in view of the foregoing, we set aside the impugned order and allow the appeal with consequential relief, if any.
(Dictated in Court) (C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial) nsk 1 5 Appeal No. ST/638/10