TaxTMI 
TaxTMI 
2013 (12) TMI 741
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....ng, Erection, Commissioning and Installation, Maintenance or Repair and was registered with the service tax authorities for payment of service tax for those services as and when those services became taxable. On 16-05-08, a new levy was imposed on "Information Technology Software Service". The respondents were providing such service and they were also receiving such services from persons located abroad. The services provided by them were being exported. 3. On 27-06-08, the respondent applied for modifying their registration with service tax authorities to include the new taxable service namely, Information Technology Software Services and also for centralized registration of their units located at various locations in India. Such registration was granted on 22-07-08. They started taking Cenvat credit of input services used in the new taxable output service. They were not able to utilize entire Cenvat credit that was being taken for payment of service tax provided within India. So they filed a refund claim on 23-01-09 under Rule 5 of the Cenvat Credit Rules, 2004 pertaining to services exported during the period May 2008. The total amount of refund claimed was Rs.16,67,520/-. Out....
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....le to pay the service tax under this Chapter or the rules made thereunder shall, within such time and in such manner and in such form as may be prescribed, make an application for registration to the Superintendent of Central Excise. (2) The Central Government may, by notification in the Official Gazette, specify such other person or class of persons, who shall make an application for registration within such time and in such manner and in such form as may be prescribed. B) Rule 4 of Service Tax Rules, 1994 which reads as under :- RULE 4.?Registration. - (1) Every person liable for paying the service tax shall make an application to the concerned Superintendent of Central Excise in Form ST-1 for registration within a period of thirty days from the date on which the service tax under section 66 of the Finance Act, 1994 (32 of 1994) is levied : Provided that where a person commences the business of providing a taxable service after such service has been levied, he shall make an application for registration within a period of thirty days from the date of such commencement (4) Where an assessee is providing more than one taxable service, he may make a single application,....
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....factory from which the final products are exported is situated, along with the Shipping Bill or Bill of Export, duly certified by the officer of customs to the effect that goods have in fact been exported; or (b) the registered premises of the service provider from which output services are exported is situated, along with a copy of the invoice and a certificate from the bank certifying realization of export proceeds.- 6. The application in Form A, along with the prescribed enclosures and the relevant extracts of the records maintained under the Central Excise Rules, 2002, CENVAT Credit Rules, 2004, or the Service Tax Rules, 1994, in original, are filed with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, before the expiry of the period specified in section 11B of the Central Excise Act, 1944 (1 of 1944). 7. Thus he argues that there are legal provisions under which a service provider is required to take out registration before claiming Cenvat credit and these provisions were not pointed out to the High Court in the case of Portal Wireless Solutions (....
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....s in applying for registration. It is his contention that there is no time limit provided in the CCR, 2004 for taking of credit with reference to date on which service is received or the date on which the invoice is raised. The only restriction is that same should be in respect of taxable service and taken only after payment was made to the service provider. There is nothing in the proceedings to the effect that credit was taken in respect of any exempted service or the appellant took credit without payment of consideration for services received. In the decision of Karnataka High Court in mPortal India Wireless Solutions Pvt. Ltd. (supra) the High Court held that there is nothing in CCR 2004 to the effect that Cenvat credit for a period prior to date of registration could not be taken. Even in the present proceedings, Revenue is not pointing out any such explicit provision in Cenvat Credit Rules, 2004. He submits that this decision of Hon. Karnataka High Court should prevail over the decision of Tribunal in Showa India (P) Ltd. (supra) and the stay order of the Tribunal in Welspun Max steel Ltd. (supra). The other decisions pointed out Ld. A. R. are not dealing with the issue prese....
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....such situation. The delay in taking registration is only of 11 days. The claim for refund has been submitted after registration. Further the provision of CCR, 2004 which is not complied with is not precisely pointed out. The requirement of registration prior to having eligibility for credit is sought to be achieved by a laborious interpretation of Service Tax Rules, 1994 and Cenvat Credit Rules, 2004 by interpreting that a service provider has to get registered (as per Service Tax Rules, 1994) and only a service provider can take credit (as per Cenvat Credit Rules, 2004) and deducing that an unregistered service provider does not get eligibility for credit. This is not a very sound argument. By not getting registered a person does not cease to become a provider of taxable service if he is actually providing such service. Even if a service provider is not registered there will be tax liability on him if he is providing taxable service. The concomitant benefit of Cenvat credit also has to be seen accordingly, of course subject to provisions in Cenvat Credit Rules 2004, in the absence of clear provisions to the contrary. 14. The procedural requirements for allowing Cenvat Credit is....