TMI Blog2013 (12) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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 Bang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d amount was rejected on two grounds namely,- (i) the respondent had taken credit of input services received prior to 28-05-08. This date has been reckoned after giving allowance to the fact that respondent had to apply for registration only within 30 days from the date they started providing taxable service. (ii) Some portion of the credit taken is rejected on certain services which the adjudicating authority considered to be not input services. These amounts were service tax paid on (a) rent paid for cafeteria area in their business premises (b) AMC charges for Air Conditioners. (c) payments made to Instructor in Gymnasium in business premises. 4. Aggrieved by the order of the adjudicating authority, the respondent filed an appeal with the Commissioner (Appeals). The Commissioner (Appeals) relied on the decision of the Karnataka High Court in the case of Portal India Wireless Solutions (P) Ltd. Vs CST -2012 (27) STR 134 (Kar.) holding that service tax registration is not mandatory for refund of accumulated Cenvat credit of service tax paid on input services used for export of services. The Commissioner (Appeals) also held that the disputed input services had nexus with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise shall after due verification of the application form, or an intimation under sub-rule (5A), as the case may be, grant a certificate of registration in Form ST-2 within seven days from the date of receipt of the application or the intimation. If the registration certificate is not granted within the said period, the registration applied for shall be deemed to have been granted. (5A) Where there is a change in any information or details furnished by an assessee in Form ST-1 at the time of obtaining registration or he intends to furnish any additional information or detail, such change or information or details shall be intimated, in writing, by the assessee, to the jurisdictional Assistant Commissioner or Deputy Commissioner of Central Excise, as the case may be, within a period of thirty days of such change. C) He relies on Rule 7 of Service Tax Rules 1994 which reads as under :- RULE 7. Returns.- (1) Every assessee shall submit a half-yearly return in Form ST-3 or ST-3A , as the case may be, along with a copy of the Form TR-6, in triplicate for the months covered in the half-yearly return. (2) Every assessee shall submit the half yearly return by the 25th o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs CCE Faridabad - 2012 (275) ELT 128 (Tri.-Del.) 8. He relies on a host of other decisions to argue that whenever exemption is claimed, the conditions have to be strictly complied with. He particularly relied on the following decisions. (i) CCE New Delhi Vs Hari Chand Shri Gopal - 2010 (260) ELT 3 (SC) (ii) Eagle Flask Industries Ltd. Vs CCE Pune - 2004 (171) ELT 296 (SC). (iii) Wipro Ltd. Vs UOI 1997 (94) ELT 470 (SC). 2012 (27) STR 225 (Kar.). (iv) CST Bangalore Vs Motor World - 2012 (27) STR 225 (Kar.). (v) CCE Ahmedabad Vs Inductotherm (I) Pvt. Ltd. - 2012 (283) ELT 359 (Guj.). 9. Ld.AR also submitted that in the case of disputed input services, Revenue is not contesting the credit in respect of maintenance of building at Hyderabad as mentioned in ground No.(vii) of the memo of appeal. In respect of other services, like rent paid on cafeteria area, AMC for Air conditioning and service tax paid on services of instructor engaged in a gymnasium in business premises. The Ld A.R. contests that those services have no nexus with the output services provided. In support of his contention, he relies on the decision of Hon'ble Gujarat High Court in CCE Ahmedabad Vs Cadila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vocate said that no such credit has been taken and there is no allegation in the show cause notice that such credit was taken and that is the reason why there is no argument on this issue has been placed before the lower authorities. 12. The Ld Advocate for Respondent argues that in a context, where they were not required to pay service tax in respect of the information technology service provided, the delay of 11 days cannot be reason to deny credit especially having regard to the fact that CCR, 2004 does not impose any restriction as to the time limit within which credit is to be taken. He submits that input services in question were received after 16-05-08 and used for providing taxable output service exported and that should be sufficient for the purpose of claiming refund. He further submits that provisions of notification 5/06-CE(NT) have been complied because respondent had already taken out registration and the refund claim was filed before the authority with whom registration was taken. According to him, the decision of Karnataka High Court in Portal India Wireless Solutions Pvt. Ltd.(supra) applies on all fours to the facts of the case and therefore there is no reason t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken. The essential criteria laid down in the proviso to Rule 9(2) is that the service should have been received and accounted and used in providing the taxable service. 15. The decisions pointed out by the Ld A. R. for revenue are in the matter of claiming exemption notification and in the matter of compliance with substantive issues. Those are not in the context of Cenvat Credit Rules. So I consider the facts and law of this case to be different from those dealt with in those cases. 16. In view of discussions as above, I do not find any reason to take a view different from the one taken by Hon. Karnataka High Court in the case of Portal Wireless Solutions Pvt. Ltd.(Supra). So I uphold the order of Commissioner (Appeals) on the first issue. 17. On the issue of eligibility of cenvat credit on certain specific services also I have heard both sides in detail. There is 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 (20) STR 577 (Bom.) and by the Karnataka High Court in the case of CCE Bangalore Vs Stanzen Toyotet ..... 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