ST - CENVAT - Refund - Rule 5 of CCR, 2004 does not stipulate registration of premises as a necessary pre-requisite for claiming a refund: High Court
By TIOL News Service
CHENNAI, JUNE 16, 2018: THIS is a Revenue appeal against the order dated 31.07.2017 - 2017-TIOL-4557-CESTAT-MAD passed by the CESTAT.
The CESTAT had held -
ST - Assessee engaged in providing services under category of BAS and BSS - Dispute relates to order of Commissioner (A) allowing Credit in respect of credit availed on input services received in premises which were prior to registration - In assessees's own case on identical issue, the Tribunal vide Final order dated 22.05.2017, has held in favour of assessee by following the judgment of High Court of Madras in Scionspire Consulting Services (I) Pvt. Ltd. - 2017-TIOL-798-HC-MAD-ST - As there are no new facts and circumstances that has been pointed out in present case, Tribunal follows the ratio already laid down in said final order of Tribunal and dismisses the appeal of department: CESTAT
The respondent, a 100% EOU, engaged in providing Business Auxiliary Service and Business Support Servicefiled a refund claim of Rs.71,39,495/- in respect of the service tax paid on input service tax credit taken during the period October 2012 to December 2012 under Rule 5 of CCR, 2004.
The adjudicating authority sanctioned a refund of Rs.42,06,199/- and rejected the remaining amount, on the ground of Non-Registration of premises and ineligible CENVAT credit on Car parking charges.
The Commissioner (Appeals) observed that the Registration is not mandatory to take credit and to claim refund and held that non-registration of premises cannot be a ground to reject the refund claim. However, the Commissioner (Appeals) observed that in respect of the premises at Mumbai and College Road, Chennai, the assessee had not produced any Registration Certificate for these premises and, therefore, upheld the disallowance of CENVAT credit to these premises.
In respect of Car parking charges, the Commissioner (Appeals) observed that the parking area cannot be considered as a separate area and it is a part of the premises occupied by the respondent; thatsince the service tax paid on the rental charges is eligible for CENVAT credit, then service tax paid on the car parking charges is equally eligible for CENVAT credit and set aside the disallowance of CENVAT credit and upheld the disallowance of CENVAT credit in respect of Event Management service.
While the decision of the Commissioner (Appeals) allowing the credit in respect of Car Parking Charges was found acceptable, the decision in respect of credit availed on the inputservices received in the premises which was not registered prior to export, but subsequently Registered was found to be not legally correct and hence the Department filed an appeal before CESTAT.
TheTribunal dismissed the Revenue appeal resulting in the present appeal wherein interalia the following substantial questions of law was raised - Whether the decision of Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench, Chennai (CESTAT for short) in allowing refund of CENVAT credit even without registration is correct?
The High Court observed that the issue is no longer res integra inasmuch as the same is covered by the decision in M/s. Scioinspire Consulting Services India Private Limited, Chennai - 2017-TIOL-798-HC-MAD-ST, wherein while dealing with similar substantial questions of law, the High Court had after considering the provisions, relevant notifications and decisions in M/s.mPortal India Wireless Solutions Private Limited - 2011-TIOL-928-HC-KAR-ST; in Tavant Technologies India Private Limited - 2016-TIOL-441-HC-KAR-ST; Atrenta India Private Limited - 2016-TIOL-2741-HC-ALL-ST held against the Revenue by observing thus -
8.4. What is relevant to note is that Rule 5 of the 2004 Rules does not stipulate registration of premises as a necessary prerequisite for claiming a refund.
8.5. In so far as the Assessee in this case, is concerned, it had obtained registration of its premises way back on 23.01.2009. The record shows that allegation of non-registration of premises relates to another building, which was taken on lease by the Assessee and is located in Alwarpet, Chennai. Concededly, services were exported to a overseas Company, from this building which was not registered. Similarly, Rule 4 of the 1994 Rules, inter alia, provides that in case where a person is liable for paying service tax on a taxable services, who provides for such services from more than one premises, he may at his option register one or more premises or offices from where centralized billing or accounting is done. Once, the Assessee conveys his option to the concerned Authority, registration under Rule 4(2) of the 1994 Rules is granted by the Commissioner of Central Excise, within whose jurisdiction, such premises or offices are located.
8.6. A perusal of the Sub Rules(2) and (3)of Rule 4 of the 1994 Rules, on which, reliance is placed by the learned counsel for the Revenue, does not bring to fore any limitation, with regard to grant of refund, for unutilized cenvat credit, qua, export services, merely on the ground that the premises are not registered.
Noting that the facts and grounds of challenge are duly covered by the abovesaid decision, the instant Civil Miscellaneous Appeal was dismissed.
(See 2018-TIOL-1126-HC-MAD-ST)
