TaxTMI 
TaxTMI 
2017 (4) TMI 943
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....ed 14.03.2006? 3. Whether CESTAT i.e. Respondent No.1 is correct in applying the ratio of the judgment of the Hon'ble Karnataka High Court in the case of M/s. mPortal Wireless Solutions Private Limited when the said judgment was not accepted on merits but due to low revenue effect?" 2.In order to adjudicate upon the appeal, the following brief facts are required to be noticed: 2.1.The respondent, hereafter referred to as the Assessee, is in the business of providing IT and Business Support Services. 2.2.The Assessee, admittedly, is registered with the Department, and accordingly, registration was accorded to it, in the first instance, on 23.01.2009, which was later on, amended, on 11.07.2013. 3.It appears, that the Assessee, filed a refund claim dated 31.10.2013, which was received in the office of the concerned Authority on the very same date. The refund claim was made by the Assessee, for a sum of Rs. 4,56,924/-. 3.1.To be noted, the refund claim pertained to the period from October, 2012 to December, 2012. 4.The Assessee, in effect, sought input service tax credit qua services used in export of output services. 4.1.The Assistant Commissioner, Division....
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....before us, that the aspect of limitation has not been raised in the present appeal. 7. In so far as Question No.2 is concerned, it has not been pressed before us and rightly so, as it does not arise out of the impugned judgement and order. Though, it was not pressed before us during the course of arguments, we have, in any event, also examined the said notification bearing No.05/2006-CE (NT), dated 14.03.2006, as it forms part of grounds of appeal. 7.1. To our minds, a bare perusal of the said notification would show that it only sets out the procedure for claiming refund of unutilized input service credit. The only clause of the notification, which, perhaps, the Department could have relied upon, is Clause 3, which, to our minds, has no bearing on the issue arising in the instant case. For the sake of convenience, the relevant part of the said notification is extracted hereafter : "Notification No.05/2006-Central Excise (N.T.) 14th March 2006 G.S.R. (E) In exercise of the powers conferred by rule 5 of the CENVAT Credit Rules, 2004 (hereinafter referred to as the said rules), and in supercession of the notification of the Government of India in the Ministry of Finance (....
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....if, the premises are not registered. The fixation of jurisdiction of the concerned officer, to whom, an application is to be made, by correlating it, with the location of the registered premises, cannot, to our minds, by implication, be read in a manner that it obliterates the rights of the exporter of output services, to claim refund of CENVAT credit. 7.4. Restriction, if any, is provided in clause 5 of the said notification, which states that refund of unutilised input credit will be restricted to the extent of the ratio of export turnover to the total turnover for the given period, to which, the claim relates. For the sake of convenience, relevant part of the clause 5 of the notification is extracted hereafter : "5. The refund of unutilised input service credit will be restricted to the extent of the ratio of export turnover to the total turnover for the given period to which the claim relates, i.e., Maximum refund ? total CENVAT credit taken on input services during the given period X export turnover / Total turnover ........." 7.5. Therefore, there is no merit in the submission advanced on behalf of the Revenue that the said notification would disentitle the claim of ....
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....re located in one or more premises, he may, at his option, register such premises or offices from where centralized billing or centralized accounting systems are located. (3) The registration under sub-rule (2), shall be granted by the Commissioner of Central Excise in whose jurisdiction the premises or offices, from where centralised billing or centralised accounting is done, are located: Provided that xxxxx ......" 2004 Rules: 5. Refund of CENVAT credit (1) A manufacturer who clears a final product or an intermediate product for export without payment of duty under bond or letter of undertaking, or a service provider who provides an output service which is exported without payment of service tax, shall be allowed refund of CENVAT credit as determined by the following formula subject to procedure, safeguards, conditions and limitations, as may be specified by the board by notification in the Official Gazette : Refund amount= (Export turnover of goods +Export turnover of services __________________________________________ X Net CENVAT credit Total turnover Where,__ (A) "Refund amount" means xxxxx (B) "Net CENVAT credit" means xxxxx (C) "....
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.... was taken on lease and was located at Alwarpet, Chennai", was not registered. 9.The view that has been articulated above, is also taken by the Karnataka High Court in mPortal India Wireless Solutions (P) Ltd. Vs. Commissioner of Service Tax, Bangalore, 2012 (27) S.T.R. 134 (Kar.) and in Commissioner of Service-Tax Vs. Tavant Technologies India Pvt. Ltd., 2016 (3) TMI 353. 10.Furthermore, the Allahabad High Court, vide its judgment in the case of: Commissioner, Service Tax Commissionerate V. Atrenta India Pvt. Ltd., 2017 (2) ADJ 590, has taken the same view. 11.For the sake of convenience, the relevant observations made in mPortal India Wireless Solutions (P) Ltd. Vs. Commissioner of Service Tax, Bangalore, are extracted hereafter: "6. The assessee is a 100 per cent export oriented unit. The export of software at the relevant point of time was not a taxable service. However, the assessee had paid input tax on various service. According to the assessee a sum of Rs. 4,36,985/- is accumulated Cenvat credit. The Tribunal has categorically held that even though the export of software is not a taxable service but still the assessee cannot be denied the cenvat credit. The asse....
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....utput services in value terms is fifty percent or more of the total clearances of final products or output services, as the case may be, in the preceding quarter; or (b) The claim is filed by Export Oriented Unit, the claim for such refund may be submitted for each calendar month. (3)..... 14. Rule 4 provides that refund is allowed only in those circumstances where a manufacturer or provider of output service is not in a position to utilize the input credit or input service credit allowed under rule 3 of said rules against goods exported during the quarter or month to which the claim relates. 15. We do not find anything in the aforesaid rules which require registration as a condition or eligibility to claim refund. Even Form-A no where suggests that any such condition must be observed. 20. The judgment of Madras High Court therefore, was clearly rendered in the facts of that case. Be that as it may, we are inclined to accept the view taken by Karnataka High Court considering the fact that in the rules of refund of Cenvat credit, we do not find any such requirement of registration as a condition precedent or eligibility condition for claiming refund." 14.We may, only ....