2015 (4) TMI 430

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....logy software service" became a taxable service from 16/5/2008 and therefore prior thereto no credit in respect of that service was admissible and no refund was admissible. The appellants have contended that (i) they are a 100% of EOU (STPI Unit) engaged in export of 'Information Technology Software Services' and being unable utilize Cenvat credit of service tax taken on input services used in providing an output service which was exported, they applied for refund of Rs. 2,24,334/- under Notification 05/2006-CX(NT) dated 14.3.2006 issued under Rule 5 of Cenvat Credit Rules, 2004, to which they were entitled. (ii) Rejection of their claim (of Rs. 1,72,058/-) for the prior October 2007 to 16/5/2008 is not legal because they had actu....

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....d in providing output service which is exported, the, CENVAT credit in respect of the input or input service so used shall be allowed to be utilized by the manufacturer or provider of output service towards payment of, (i) duty or excise on any final product cleared for home consumption or for export on payment of duty; or (ii) service tax on output service and where for any reason such adjustment is not possible, the manufacturer or provider or output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification." It is thus evident that under Rule 5 ibid refund of Cenvat credit is allowed only in respect of input services used in pr....

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....but then such Cenvat credit, as is clearly mentioned there-in, is to be taken in terms of the provisions of the Cenvat Credit Rules which, as discussed earlier, do not permit taking of any Cenvat credit by the appellants when they did not provide /export any "Output Service". As regards the judgement in the case of M/s mPortal India Wireless Solutions.(P) Ltd passed by Hon'ble Karnataka High Court (supra) it is seen that in that judgement the only issue decided by the Hon'ble Court was whether the authorities were justified in refusing to grant refund of Cenvat credit to which the assessee was legally entitled only on the ground that the assessee was not registered with the department. It is needless to say that this is not an issue....