By TIOL News Service

CHENNAI, JUNE 21, 2018: THIS is a Revenue appeal.

The respondents (100%EOU) provide Business Process Outsourcing services to customers outside India and are also registered with the Service Tax Department with effect from 30.1.2008.

A refund claim u/r 5 of CCR, 2004 was filed by them for the period April 2007 to March 2008 for refund of the unutilized CENVAT credit.

The original authority rejected the claim on four grounds, namely (a) refund is hit by limitation; (b) exports are made prior to obtaining registration; (c) software services are exported and (d) credit is ineligible.

The Commissioner(A) set aside this order attributing 'availment of credit before registration as a mere technical lapse' and, therefore, the Revenue is before the CESTAT.

It is submitted that the Commissioner (Appeals) erred in granting refund for the period prior to obtaining registration.

None appeared on behalf of the respondent.

The Bench observed that the issue whether respondent is eligible to avail credit before registration has been settled by the decision in the case of mPortal India wireless Solutions P. Ltd. = 2011-TIOL-928-HC-KAR-ST.

Inasmuch as it is held therein that -

"7… 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…"

Noting that there is no merit in appeal filed by the department, the same was dismissed.

(See 2018-TIOL-1920-CESTAT-MAD)