Custom, Excise & Service Tax Tribunal
Bny Mellon International Operations ... vs Commissioner Of Central Excise on 5 May, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT No. I Appeal No. ST/707 & 708/10 (Arising out of Order-in-Appeal No. PIII/VM/196-197/2010 dated 19.08.2010 passed by Commissioner of Central Excise (Appeals), Pune III) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, 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?
BNY Mellon International Operations (I) Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Pune III Respondent Appearance:
Shri Deepak Agarwal, C.A. for appellant Shri D. Nagvenkar, Addl. Commr. (AR) for respondent CORAM:
Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical) Date of Hearing: 05.05.2015 Date of Decision: 05.05.2015 ORDER NO Per: M.V. Ravindran These 2 appeals are directed against Order-in-Appeal No. PIII/VM/196-197/2010 dated 19.08.2010. Since both the appeals raise the same question of facts and law they are being disposed of by a common order.
2. Heard both sides and perused the records.
3. The appellants herein had filed 2 refund claims for the refund of amount of service tax paid by them to the service providers on the ground that the appellant being export of services, provisions of Cenvat credit rules allows refund of the service tax paid on input services. It is the claim of the appellant that there is no dispute as to the eligibility to avail Cenvat credit, the dispute is related only point that the service providers had raised the invoices on the appellant before the service tax registration was granted to the appellant. It is seen from records that the lower authorities have allowed the refund of an amount of service tax paid the service providers by the appellant after they were granted service tax registration. This would mean that there is no dispute as to the eligibility to avail Cenvat credit and refund thereof as it is undisputed that appellant is exporter of services. The entire dispute is restricted to the point as to non-eligibility for claiming the refund of the services received by the appellant before they were granted service tax registration.
4. We find that the issue is no more res integra. This bench in the case of Commissioner of service tax, Mumbai-II v. J P Morgan services India private Limited 2015 TIOL 226 CESTAT MUM has considered the very same issue and following the law as laid down by the matter High Court, held in favour of the appellant therein. The ratio is in paragraph number 7 which we reproduce.
7. On the second issue of late registration, the respondents have rightly relied on Rule 4 of the Service Tax Rule under which registration is deemed to be granted within seven days of the application for registration. In the present case, the respondent had applied for centralized registration on 5.10.2006. Some communication took place thereafter between the respondent and the department which has been shown by the respondent and the registration was finally granted on 26.12.2008. We find nothing substantial in the series of communications to indicate that some important elements to be considered for registration are missing in the application, such as the premises which is sought to be registered. The judgments cited by Commissioner (Appeals) are relied upon. Further, judgment of the Karnataka High Court in the case of mPortal India Wireless Solutions Pvt. Ltd. vs. C.S.T. Bangalore 2012 (27) STR 134 (Kar.) = 2012-TIOL-933-CESTAT-BANG which held that there is no restriction in availing cenvat credit before registration is granted. The Hon'ble High Court held that"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 provisions 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."
5. In view of the foregoing and in the facts and circumstances of this case, and following the judicial pronouncements we hold that the impugned order is unsustainable to the extent it is challenged before us. The impugned order is set aside and appeal is allowed with consequential relief to the extent it is challenged before this Tribunal. (Dictated in Court) (P.S. Pruthi) Member (Technical) (M.V. Ravindran) Member (Judicial) nsk ??
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