TaxTMI 
TaxTMI 
2023 (5) TMI 1131
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....ax-I, Division III, Chennai, who had partly allowed the refund claims, but rejected certain portion on account of certain invoices not being submitted within the limitation period of one year in terms of Section 11B of the Central Excise Act, 1944 and also availment of CENVAT Credit on account of non-registration of premises as well as availing CENVAT Credit on certain invoices even before payment of Service Tax. 2. It is to be noted that there is a change in the respondent's name from "Ad2pro Media Solutions Private Limited" to "Ad2pro Global Creative Solutions Private Limited". Miscellaneous petitions have been filed by the respondent to this effect requesting for change in the cause-title. The above request was acceded to and the petitions for amending the cause-title are allowed, as prayed for. 3.1 The details of the appeals are summarized below: - S. No. Appeal No. OIA No./ date OIO No./ date Period Involved Date of refund claim Refund claimed (in Rs.) Refund sanctioned (in Rs.) Refund amt rejected (in Rs.) (1) (2) (3) (4) (5) (6) (7) (8) (9) 1. ST/40175/17 534, 535 & 536/2016 (STA-I) dt. 01.09....
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.... where provision of service has been completed should be the 'relevant date' in terms of Section 11B of the Central Excise Act, 1944, thereby allowing the appeals filed by the respondent-assessee. 4.2 The respondent has contended that in respect of late payment of tax on import of service under reverse charge mechanism on the Challan No. 10183 dated 04.07.2013 for Rs.14,25,948/- and with regard to the invoices pertaining to M/s. Dun & Bradstreet Information Services India Pvt. Ltd., the receipt and utilization of the said services, in or in relation to their output service or the Service Tax paid or the nature of the services was not at all in dispute. It was put forth that it is a settled law that substantial benefit cannot be denied for procedural lapses; the only aspect that was to be ensured is that the refund should not be claimed more than once on the same invoice. Reliance was placed on the following case-law in support of the above contentions: - (i) Collector of Central Excise, Madras v. Redema [1998 (97) E.L.T. 454 (Tribunal)] (ii) Manubhai & Co. v. C.S.T., Ahmedabad [2011 (21) S.T.R. 65 (Tri. - Ahmd.)] (iii) Cotfab Exports [2006 (205) E.L.T.....
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....accumulated prior to their registration. It is also the contention of the Department that the issue involved in these appeals is not a mere technical lapse; in order to deserve any substantive benefit of any Act or Rule, the person claiming such substantive benefit has to strictly follow the conditions and procedures prescribed therein. Reliance in this regard has been placed on the decision of the Division Bench of the Hon'ble Madras High Court in the case of Commissioner of Central Excise Coimbatore v. M/s. Sutham Nylocots [2014 (306) E.L.T. 255 (Mad.)] wherein it was observed that credit is accrued only after the date of registration. 8.1 Ms. Shrayashree T., Learned Advocate representing the respondent, has submitted that eligibility for refund of CENVAT Credit under Rule 5 of the CENVAT Credit Rules, 2004 pertaining to the period prior to registration of premises is legally set at rest by a series of decisions of the Hon'ble jurisdictional High Court in the cases of: - (i) Commissioner of Service Tax-III, Chennai v. CESTAT, Chennai & Scionspire Consulting Services (India) Pvt. Ltd. [2017 (3) G.S.T.L. 45 (Mad.) (ii) Commissioner of G.S.T. & Central E....
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.... that the assessee would not be entitled to avail the benefit of any scheme under the Act or Rule even before its registration and also before payment of tax thereon. 10. We have heard both sides and perused the records as available in these appeals. 11. We find that the Department came in appeal only on the following two issues: - (1) Whether the respondent herein is eligible to avail the CENVAT Credit on inputs / input services without registration of its premises? (2) Whether the respondent-assessee can avail CENVAT Credit on inputs or input services before payment of tax thereon and also before the date of invoice? 12.1 We find that the Hon'ble Madras High Court in the case of Commissioner of Service Tax-III, Chennai v. CESTAT, Chennai & Scionspire Consulting Services (India) Pvt. Ltd. [2017 (3) G.S.T.L. 45 (Mad.)] has held that in the absence of any statutory provision prescribing registration of premises as mandatory for availing input service tax credit, the assessee could not be denied refund of unutilized CENVAT Credit on input services 12.2 We also find that the Hon'ble Karnataka High Court in the case of mPortal India Wireless Soluti....
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....ant of registration of the premises is bad. The impugned order to this extent cannot be sustained and consequently, the same is set aside." 12.4 So, we have to hold that denial of CENVAT Credit for non-registration of premises is not justified in the facts of these appeals. 13.1 Regarding premature availment of credit where substantive conditions to take CENVAT Credit are fulfilled, we find that the respondent had availed CENVAT Credit to the tune of Rs.18,169/- prior to the date of payment of tax, i.e., the CENVAT Credit was availed for the refund claimed from April 2013 to June 2013 when the Service Tax was paid on 04.07.2013. The respondent has admitted that it is a procedural lapse, but their substantive right cannot be taken away when there is no dispute as to the eligibility of CENVAT Credit of Service Tax paid and when conditions like payment of tax and receipt of service have been found to be satisfied. 13.2 In this connection, reference is made to Rule 4(7) of the CENVAT Credit Rules, 2004, which reads as given below: - "Rule 4. Conditions for allowing CENVAT credit - ... (7) The CENVAT credit in respect of input service shall be allowed....