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2013 (12) TMI 741 - CESTAT CHENNAIDemand of service tax - Denial of CENVAT Credit - Renting of cafeteria area - Refund of Cenvat Credit - Assessee 100% Export Oriented Unit - Service Tax Registration Certificate not submitted - Held That:- there is nothing in CCR, 2004 to restrict taking of credit only for services received after the date of registration especially in a situation where provider of service is exporting the services and is not required to pay service tax - Rule 4 of Service Tax Rules is applicable to a person who is liable to pay service tax. If there is an offence of not complying with Rule 4 of Service Tax Rules, that matter has to be adjudicated as per the provisions of the Act and the Rules. Denial of Cenvat credit may not be the proper course in such situation. The delay in taking registration is only of 11 days. The claim for refund has been submitted after registration. Further the provision of CCR, 2004 which is not complied with is not precisely pointed out. The requirement of registration prior to having eligibility for credit is sought to be achieved by a laborious interpretation of Service Tax Rules, 1994 and Cenvat Credit Rules, 2004 by interpreting that a service provider has to get registered (as per Service Tax Rules, 1994) and only a service provider can take credit (as per Cenvat Credit Rules, 2004) and deducing that an unregistered service provider does not get eligibility for credit. By not getting registered a person does not cease to become a provider of taxable service if he is actually providing such service. Even if a service provider is not registered there will be tax liability on him if he is providing taxable service. The concomitant benefit of Cenvat credit also has to be seen accordingly, of course subject to provisions in Cenvat Credit Rules 2004, in the absence of clear provisions to the contrary - Following decision of Portal India Wireless Solutions (P) Ltd. Vs CST [2011 (9) TMI 450 - KARNATAKA HIGH COURT]. No reason to hold that renting of cafeteria area cannot form input service when service of cafeteria itself is considered as input service as decided by Mumbai High Court in CCE Nagpur Vs Ultratech Cement Ltd. - [2010 (10) TMI 13 - BOMBAY HIGH COURT] and in the case of CCE Bangalore Vs Stanzen Toyotetsu India (P) Ltd.- [2011 (4) TMI 201 - KARNATAKA HIGH COURT] - Decided against Revenue.
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