TaxTMI 
TaxTMI 
TaxTMI 
2018 (6) TMI 676
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....the remaining amount, on the ground of Non-Registration of premises and ineligible CENVAT credit on Car parking charges. The adjudicating authority rejected refund on CENVAT credit on the following services, for the reasons stated in the following Table, in the Order-in-Original No.32 of 2015 dated 30.10.2015. S. No. Refund of CENVAT Credit claimed on Rejected amount (Rs.) Reasons for rejection 01 Event Management Service 40417 Not an input service as per Rule 2(I) of CENVAT credit Rules 02 Car Parking Charges 111240 03 Other services like entertainment, T-Shirt, printing etc. 36144 04 Unregistered premises at Mumbai 86947 The premises were not registered 05 Unregistered premises at Principal Tower, College Road, Chennai 11293 06 Services received at 4th and 5th Floor of Menon Eternity, New Door No.165, St.Mary's Road, Alwarpet, Chennai-18 1486920 The premises were not registered at the time of export but subsequently obtained Registration. 07 Services received at International Tech Park Unit No.1 to 4, 11th Floor, Taramani Chennai. 1144872 3. Aggrieved by the above orders, the respondent filed an appeal before Commissioner (Appeals)....
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....by CESTAT, Madras and vide FO No.40778 dated 22/05/2017 dismissed the appeal, as hereunder: "2. On 21.07.2017, when the matter came up for hearing, on behalf of the department Ld.AR, Shri K.P.Muralidharan, AC, submits that the Division Bench of the Hon'ble High Court of Madras in the case of CCE, Coimbatore Vs. Sutham Nylocots - 2014 (306) ELT 255 (Mad.) has held that credit accrues only after the date of registration, hence any substantive benefit with regard to credit availed after the date of registration. 3. On the other hand, Ld.Advocate appearing on behalf of the respondent-assessee Shri Joseph Prabhakar submits that in their own case on identical issue, the tribunal vide Final Order No.40773 - 40779/2017 dated 22.05.2017, has held in favour of them by following the judgment of the Hon'ble High Court of Madras in Scionspire Consulting Services (I) Pvt. Ltd. 4. We find that the Ld. Advocate for the respondent assessee is correct in his submission. This tribunal vide Final Order No.40773-40779/2017 dated 22.05.2017, has held as follows: 7.2. From the grounds of appeal and statement of facts at page 17 of the appeal folder, it is seen that Revenue is aggrieved th....
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....ndent is erred in not considering the safeguards, conditions and limitations as stipulated in the Appendix to the Notification No.27/2012-CE(NT), dated 18.06.2016 . 9. Supporting the prayer sought for, Ms.Aparna Nandakumar, learned counsel for the revenue submitted that: (i) Registration is an act by which every manufacturer / assessee / service provider comes under the ambit of Central Excise Act, 1944 / Finance Act, 1994. In order to avail any substantive benefit, like, CENVAT Credit given under the statute, registration of premises from which the taxable service is rendered is a pre-requisite. Therefore, by not obtaining registration as per Sec.69 of the Act in this case, the respondent is not entitled for refund of CENVAT read with rule 4(1) of the Rules had rendered them ineligible for CENVAT credit on input services accumulated prior to registration. (ii) In this case, the respondent is not entitled for refund of CENVAT credit in respect of input or input service used in export of service without payment of service tax prior to the date of their being registered with service tax department. (iii) The issue involved in these appeals is not a mere technical lapse. In order ....
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.... reason that Rule 4 of Export of Service Rules, 2005 permitted a service provider to export services without payment of service tax, and thus, there is liability to pay service tax on export of service, but for this rule. Hence, for export of service by a service provider, registration is a sine qua non for procedural and substantive compliance. (vi)The judgment of the Hon'ble High Court of Madras in the case of Commissioner of Service Tax, Chennai-III Vs. M/s.Scionispire Consulting Services (India) P Ltd., applied by CESTAT for deciding the appeal in favour of the respondent was accepted by the department due to monetary limit and not on merits, and therefore, it is humbly submitted that the ratio of the said judgment should not have been taken as a binding precedent in view of Section 35R (3) of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1944. (vii)The subsequent decision of CESTAT issued vide FO No.42500/2016 dated 20/12/2016 in the case of the same party viz., M/s.Scioinspire Consulting Services (India) P Ltd., was also appealed against in this Hon'ble Court. In respect of the said case, this Hon'ble Court, has admitted Civil Miscellaneo....
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....t 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 (Department of Revenue), No.11/2002 - Central Excise (NT), dated 1st March, 2002, published in the Gazette of India Extraordinary, vide number G.S.R.No.150(E), dated 1st March 2002, the Central Gove....
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....o 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 the Assessee qua refund of CENVAT credit." 13. On Questions of Law 1 and 3, the Hon'ble Division Bench, at paragraph Nos.8.4 to 8.7, considered thus "8.4.What is relevant to note is that Rule 5 of th....