2018 (2) TMI 1416

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....usiness Auxiliary Service and Business Support Service. (b) The respondent filed refund claim with Assistant Commissioner of Service Tax, Division III, for Rs. 71,36,924/- for the service tax paid on input service tax credit taken during the period January 2013 to March 2013 under Rule 5 of the CENVAT Credit Rules, 2004. The adjudicating authority sanctioned a refund of Rs. 37,25,023/- and rejected the remaining amount on the ground of non-registration of the premises and ineligible CENVAT credit on car parking charges. The adjudicating authority rejected the refund on CENVAT credit, on the following services for the reasons stated in the following Table in order-in-original No.05/2016 dated 27.01.2016. S.No. Refund of CENVAT credit claimed on Rejected amount (Rs.) Reasons for rejection 01. Car Parking charges 1557 Not an input service as per Rule 2(I) of CENVAT credit Rules 02. Challan    for    payment    under reverse charges not submitted 17072 03. Service     Tax     amount     not mentioned in invoices 60486 04. Unregistered premises at Principal Towe....

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.... and allowed the refund as detailed above. S.No. Services Allowed by Commissioner (Appeals) OIO No.05/2016 OIO No.12/2016 01 Car Parking charges 1557 0 02 Rental charges for scrubbing machine 0 1548 03 Services received at 4th and 5th Floor of Menon Eternity, New Door No.165, St.Mary's Road, Alwarpet, Chennai-18 1668253 1596745 04 Services received at international Tech Park Unit No.1 to 4, 11th Floor Taramani, Chennai 1357366 1241139   (e) As far as Sl.No.3 and 4 of the above table are concerned, Commissioner (Appeals) observed that the Registration is not mandatory to take credit and to claim refund, held that non-registration of premises cannot be a ground to reject the refund claim. Accordingly, set aside the impugned order to the extent of rejection of part of the refund claim on the ground of Non-registration, on the services pertaining to the respondent premises of the 4th and 5th Floor (Menon Eternity) and the premises at Taramani, considering the fact that Registration was obtained subsequently for the above premises. The Commissioner (Appeals) observed that in respect of the premises at Mumbai and at College Road, Chennai that th....

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....d the appeals filed by the Department. Being aggrieved, the Department has filed the instant appeal on the substantial questions of law stated supra. 3. On this day, when Civil Miscellaneous Appeal came up for admission, attention of this Court was invited to a decision of this Court, in Commissioner of Service Tax-III Vs. Customs, Excise & Service Tax Appellate Tribunal, Chennai & Another, reported in 2017(3) GST L 45(mad) : 2017 (4) TMI 943. 4. Questions of law considered by a Hon'ble Division Bench of this Court in CMA No.860 of 2017 dated 10.04.2017, are extracted "1. Whether the decision of CESTAT i.e. Respondent No.1 in allowing refund of Cenvat credit even without registration is correct? 2. Whether CESTAT i.e. Respondent No.1 is correct in not considering the safe guards, conditions and limitations as stipulated in the Appendix to Notification No.05/2006-CE (NT) dated 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?" 5. While deal....

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.... 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." 7.2. A bare perusal of the clause would show that in so far as the provider of output services is concerned, for making an application for refund of CENVAT Credit, he is required to file an application in the prescribed form, i.e., Form A, which is annexed to the notification, and the said application is required to be made to the Deputy Commissioner of Central Excise, or, the Assistant Commissioner of Central Excise, as the case may be. In so far as the jurisdiction of the concerned Officer is concerned, the same is fixed, in consonance with the location of the registered premises of the service provider, from which, the output service are exported. Furthermore, the application is required to be accompanied with a copy of the relevant invoices and a certificate from the bank, indicating therein, the realization of export proceeds. 7.3. Apart from the aforesaid, there is no limitation. Clearly, the notification does not prohibit the grant ....