Custom, Excise & Service Tax Tribunal
M/S. Schneider Electric India Pvt. Ltd vs Cst, Bangalore on 12 August, 2013
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench SMB
Court I
Date of Hearing:12/08/2013
Date of decision:12/08/2013
Appeal No.ST/1564/2011
(Arising out of Review Adjudication Order No.44/2011 dt. 15/03/2011 passed by CST, Bangalore)
M/s. Schneider Electric India Pvt. Ltd.
..Appellant(s)
Vs.
CST, Bangalore
..Respondent(s)
Appearance Mr. Nayaz Pasha, Chartered Accountant for the appellant.
Ms. Sabrina Cano, Superintendent(AR) for the respondent.
Coram:
Honble Mr. B.S.V. Murthy, Member(Technical) FINAL ORDER No.25849/2013 [Order per: B.S.V. Murthy] The appellant is a provider of services under the category of information technology software services which came under the service tax net w.e.f. 16/05/2008. Rule 4(1) of the Service Tax Rules, 1994 provided a time limit of 30 days for registration of the service provider. The appellant has registered themselves on 18/06/2008 as their head office was in Delhi and they took sometime for getting the necessary documents from their head office. The appellant is exporting the services. The original authority sanctioned refund of Rs.3,13,199/- under Rule 5 of the CENVAT Credit Rules. The Commissioner vide Review Order dt. 15/03/2011 disallowed an amount of Rs. 2,61,845/- and ordered recovery of the same on the ground that the said amount related to credit taken prior to the date of registration.
2. Learned CA appearing for the appellant submits that tax on these services were introduced from 16.05.2008 and since service tax is payable for the services provided from the said date, the credit of input services should also be made available from the said date. Registering a new entity to the service tax for which the time limit of 30 days has been provided by the Service Tax Rules is only a procedural requirement. The substantial benefit of CENVAT credit available under Rule 3 of the CENVAT Credit Rules cannot be denied having granted time for getting the registration providing the new service which became taxable.
3. Learned AR submits that the credit cannot be taken prior to the date of registration and that refund of credit taken prior to date of registration cannot be allowed in terms of Rule 5 of the CENVAT Credit Rules. She relies on the decision of the Tribunals Final Oder No. 928/2010 dated 01.07.2010 in the case of M/s. mPortal (India) Wireless solutions Pvt. Ltd. in Appeal No. ST/177/2009.
4. I have considered the submissions made by both sides. I find that in this case, the only issue involved is whether the appellant is eligible for CENVAT credit in respect of input services received prior to the date of registration. The Commissioner in his order has relied on the decision in the case of mPortal India Wireless Solutions Pvt. Ltd. and this decision, on an appeal filed by the appellant, was overturned and Honble High Court of Karnataka took the view that registration by the Department is not a prerequisite for claiming the credit as reported in 2012(27) STR 134. Both sides agree that the decision of the Honble High Court covers the issue. Accordingly, the appeal is allowed with consequential relief, if any, to the appellant.
(Pronounced and dictated in open court) (B.S.V. MURTHY) MEMBER (TECHNICAL) Nr 3