AI Drafter 
TaxTMI 
TaxTMI 
2022 (9) TMI 522
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....ssued under Rule 5 of Cenvat Credit Rules, 2004 (herein after called as CCR, 2004) along with several documents. Department observed that the appellant had centralized service tax registration for the premises at G-92, Basement, Kalkaji, Delhi but have claimed some input service credit for the services utilized at the premises located at A-22, Sector-64, Noida (UP), the unregistered premises. Some export invoices were also raised from the said unregistered premises. With these observations, the department formed an opinion that appellants should get registration for their Noida premises also. Accordingly, vide Show Cause Notice No. 01/2021 dated 04.03.2021, department proposed the rejection of the refund claim. The said proposal has initially been confirmed vide the Order-in-Original No.01/2021-22 dated 02.07.2021. The appeal there against has been rejected vide the order under challenge. Being aggrieved, the appellant is before this Tribunal. 2. I have heard Mr. Vipin Upadhyay and Mr. Rochit Abhishek, learned Counsels for the appellant and Mr. Ishwar Charan, learned AR for the department. 3. Learned Counsel for the appellant has submitted that the Adjudicating Authority belo....
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....4, pursuant whereto it is a statutory mandate that the service provider who is eligible to take the Cenvat credit after export of services and in whose name the invoice has been raised shall be the registered premises of the service provider. Apparently and admittedly, the office of the appellant as Noida was an unregistered premise. The Cenvat credit of inputs received in Noida premises and based on the invoices of Noida premises cannot be made available for the premises being unregistered. It is submitted that there is no infirmity vide holding that for the Noida premises the competent jurisdiction lies with Commissioner, Noida, whereas, the claim in question was filed before Commissioner, Delhi. The findings are denied to be beyond the scope of show cause notice as the issue of Noida premises to be unregistered and thus not entitled for claim of refund of Cenvat credit is the basic allegation in the show cause notice. With these submissions, the appeal in hand is prayed to be dismissed. 5. Having heard the rival contentions and perusing the records, it is observed and held as follows: 5.1 The first issue which require adjudication appears to be; whether the aut....
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....as may be specified by the board by notification in the Official Gazette (Export turnover of goods + Export turnover of services Refund amount= Total turnover x Net Cenvat credit Where, - (A) "Refund amount" means xxxxx (B) "Net Cenvat credit means xxxxxxx (C) "Export turnover of goods" means xxxxx (D) "Export turnover of services" means xxxx Export turnover of services = payments received during the relevant period for export services + export services whose provision.... (E) "Total turnover" means xxxxxx (a) xxxxxx (b) xxxxxx (c) xxxxxx (2) xxxxxx Provided xxxxx Provided further xxxxxx Explanation 1: xxxxx (1) "export service" means xxxxx (2) "relevant period" means xxxxx 6.1 Mere perusal of Rule 5 of the 2004 Rules, would, inter alia, show that where a service provider, provides an output service, which is exported, without payment of service tax under a bond, he would be entitled to refund of Cenvat credit, as determined by the formula provided in the Rule. What is relevant to note is that Rule 5 of the 2004 Rules does not stipulate registrat....
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....it. The assessee is entitled to the refund of the Cenval credit. Similarly insofar as refund of Cenvat credit is concerned, the limitation under Section 11B does not apply for refund of accumulated Cenvat credit. Therefore, bar of limitation cannot be a ground to refuse Cenvat credit to the assessee. 7. Insofar as requirement of registration with the department as a condition precedent for claiming Cenvat credit is concemed, learned counsel appearing for both parties were unable to point out any provision in the Cenvat Credit Rules which impose such restriction. In the absence of a statutory provision which prescribed 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. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside." Since, this view, as indicated above, has been reiterated by the Karnataka High Court in the judgment rendered in the case of Commissioner of Service Tax Vs. Tavant Tec....
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....vice is outside India, (e) the payment for such service has been received by the provider of service in convertible foreign exchange, and (f) the provider of service and recipient of service are not merely establishments of a distinct person in accordance with item (b) of Explanation 3 of clause (44) of section 65B of the Act (2) Where any service is exported, the Central Government may, by notification, grant rebate service tax or duty paid on input services or inputs, as the case may be, used in providing such service and the rebate shall be allowed subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification." 9. The bare perusal of the aforesaid provision clarifies that services rendered would be treated as "Export of services" when clause (a) to clause (d) refers to provider of service is located in the taxable territory and recipient of service is located outside India and the service is not a service specified in Section 66D of the Act and the place of the provision of the service is outside India and as per clause (e) the payment for such service has been received by the provider of ser....
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....dered as establishments so as to treat as distinct persons for the purpose of rendering service. Therefore, the services rendered by the petitioner No 1-Company outside the territory of India to its parent Company would have to be considered "export of service" as per Rule 6A of the Rules, 1994 and Clause (f) of Rule 6A of the Rules, 1994 would not be applicable in the facts of the case as the petitioner No. 1, who is the provider of service and its parent Company, who is the recipient of services cannot be said to be merely establishment so as to be distinct persons in accordance with Item (b) explanation 3 of Clause (44) of Section 658 of the Act, 1994." 10. I further observe that the conditions prescribed under export of Service Tax Rules, 2005 for the services to qualify to export are: (i) the service should be provided from India and used outside India. (ii) Payment for such service is received in convertible foreign exchange. 11. In the present case there is no denial that services have been provided from India and have been used outside India and that the payment has been received in convertible foreign exchange. It stands clear that the services in t....