TMI Blog2014 (8) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... no dispute that appellant has received the capital goods and the input services, utilized them for setting up the manufacturing facilities. To deny credit of the central excise duty paid and service tax paid, would be travesty of justice, more so when the assessee herein is discharging appropriate excisable duty on the finished goods cleared after taking the registration certificate. Decision in the case of mPortal India Wireless Solutions Pvt. Ltd. Vs. CCE, Bangalore (2011 (9) TMI 450 - KARNATAKA HIGH COURT) followed - Decided in favor of assessee. - Appeal No. : E/11443,11546/2013-DB - ORDER No. A/11407 -11408/2014 - Dated:- 16-7-2014 - MR.M.V. RAVINDRAN AND MR. H.K. THAKUR, JJ. For the Appellant : Shri Prakash Shah (Advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rection of the plant which manufactured excisable goods. He would submit that it is a settled law that credit cannot be denied on the capital goods and input services which were consumed for setting up of the factory. He would rely upon the recent judgment of Hon ble High Court of Karnataka in the case of mPortal India Wireless Solutions Pvt. Ltd. Vs. CCE, Bangalore - 2012 (27) STR 134 (Kar.). 4. Ld. Departmental Representative on the other hand defending the order submits that the eligibility to avail Cenvat Credit of the central excise duty paid on capital goods would be on a situation as to when the capital goods were received, whether the products were dutiable or not. It is his submission that the appellant herein received the capit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the provisions of central excise law till he got registration certificate. 9. While trying to deny the Cenvat Credit to the appellant on this ground, we find that the adjudicating authority has taken a diagonally opposite direction, as against the principles of the reducing the cascading effect of taxes. It is a common sense that unless a factory is setup, trial runs are taken, an assessee will be unable to manufacture excisable products. The entire exercise of the assessee for setting up of factory is for manufacturing excisable goods which can be done so only when he erects, installs and commissions the capital goods with the help of various agencies. In the case in hand, we find that there is no dispute that appellant has received t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a sum of ₹ 4,36,985/- is accumulated Cenvat credit. The Tribunal has categorically held that even though the export of software is not a taxable service but still the assessee cannot be denied the Cenvat credit. The assessee is entitled to the refund of Cenvat credit. Similarly insofar as refund of Cenvat credit is concerned, the limitation under Section 11B does not apply for refund an accumulated Cenvat credit. Therefore, br 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 concerned, learned counsel appearing for both parties were unable to point out any provision in the Cenvat Credit Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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