Custom, Excise & Service Tax Tribunal
Cst, Chennai vs M/S. Varizon Data Services (I) (P) Ltd on 9 May, 2012
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
ST/S/419/11 & ST/654/11
(Arising out of Order-in-Appeal No. 166/2011 (MST) dated 19.09.2011, passed by the Commissioner of Central Excise (Appeals), Chennai).
For approval and signature
Honble Mrs. ARCHANA WADHWA, Judicial Member
Honble Dr. CHITTARANJAN SATAPATHY, Technical Member
__________________________________________________________
1. Whether Press Reporters may be allowed to see the : Yes
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 the Honble Member wishes to see the fair : Seen
copy of the Order.
4. Whether order is to be circulated to the : Yes
Departmental Authorities? __________________________________________________________
CST, Chennai : Appellants
Vs.
M/s. Varizon Data Services (I) (P) Ltd. : Respondent
Appearance Shri P. Arul, Supdt., for the appellants Shri M.V. Raman, Adv. , for the respondents CORAM Honble Mrs. ARCHANA WADHWA, Judicial Member Honble Dr. CHITTARANJAN SATAPATHY, Technical Member Date of Hearing : 09.05.2012 Date of Decision: 09.05.2012 ORDER No._______________ Per: Archana Wadhwa, Being aggrieved by the order passed by the Commissioner (Appeals), the Revenue has preferred the present appeal along with the stay petition.
2. After hearing both sides, we find that the short issue involved in the present appeal is as to whether the respondents are entitled for refund of service tax prior to their registration with the service tax department. The Commissioner (Appeals) by following the Tribunals decisions in the case of M/s. Textech International (P) Ltd. Vs. CST, Chennai vide Final Order No. 1184/10 dated 04.11.20120 and in the case of Commissioner of Service Tax Vs. E-Care India Pvt.Ltd. 2011 (22) STR 529 (Tri.-Chen.), has held in favour of the respondents.
3. The Revenues ground in the memo of appeal is that the said decisions relied upon by the Commissioner (Appeals) do not stand accepted by the Revenue, who have filed an appeal their against before the Honble High Court. Ld. AR appearing for the Revenue however, fairly concedes that there is no stay of operation of the said decisions of the Tribunal. At this stage, we also note that the Honble Karnataka High Court, in the case of mPortal India Wireless Solutions (P) Ltd. Vs. CST 2012 (34 STT 322 (Kar.) has discussed an identical issue and has 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 a statutory provision which prescribed 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.
4. In as much as the issue stands decided by the Honble Karnataka High Court, we do not consider it fit to keep the present appeal on records. By following the Karnataka judgement, Revenues appeal is rejected. The stay petition as also the appeal gets disposed of in the above terms.
(Operative part of the Order pronounced in the open Court on 09.05.12)
(Dr. CHITTARANJAN SATAPATHY) (ARCHANA WADHWA)
TECHNICAL MEMBER JUDICIAL MEMBER
BB
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