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Dorling Kindersley India Pvt. Ltd. Versus CCE & ST, Noida

2015 (6) TMI 748 - CESTAT NEW DELHI

Denial of CENVAT Credit - Belated service tax registration - Held that:- Since the eligibility of the appellant to the cenvat credit on the input services has not been disputed by the Department and the only ground taken for disallowance is on account of non-registration of the service provider, I am of the considered opinion that the same is not a valid ground for disallowance of the benefit of refund, to which, the appellant is legally entitled to. - in absence of a statutory provision prescri .....

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, without discussing the nature of utilisation of such service by the service provider cannot be a defensible ground to deny the benefit of refund, especially in view of the fact that the output service has been exported by the appellant. - appellant is entitled for refund of service tax on the disputed input services and accordingly, I set-aside the impugned order - Decided in favour of assessee. - Service Tax Appeal No.ST/50274/2015 ST[SM] - Final Order No. 51774/2015 - Dated:- 29-4-2015 - Hon .....

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scope for utilising the entire cenvat credit of service tax taken on input services and accordingly, for the disputed period, the appellant had filed the refund application under Rule 5 of the Cenvat Credit Rules, 2004, claiming refund of the unutilised cenvat credit. The refund application filed by the appellant for the quarter ending September, 2012 was partly denied to the appellant on the ground that the cenvat credit from the period 01.07.2012 to 31st August, 2012 was taken prior to obtain .....

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ice tax. According to him, the refund claim under Rule 5 of the CCR, 2004 can only be filed by the service provider, in the eventuality, when the output service have actually been exported and the credit taken on the input services are not utilised due to any reason. With regard to disallowance of cenvat credit on the domestic courier service, the submissions of ld. Chartered Accountant is that the said service is confirming to the definition of input service and being utilised for providing tax .....

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reless Solutions P. Ltd. Versus C. S. T., Bangalore, reported in (2011) 16 taxmann.com 353(Kar.) and also decision of this Bench of this Tribunal in the case of M/s.ML Outsourcing Services Pvt. Ltd. vs. Commissioner of Service Tax, reported in 2013 (12) TMI 621 CESTAT, New Delhi. 3. Per-contra, the ld. DR appearing for the Revenue submits that Rule 4 (1) of the service tax Rules and Notification No.27/12-CE dated 18.06.2012 specifically provides that the service provider has to statutorily requi .....

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he present case, inasmuch as, the said judgment was delivered in the year 2011; whereas, the Notification No.27/2012-CE (NT) dated 18.06.2012 was issued only in 2012, which is much later than the passing of judgment by the Hon ble High Court. According to the ld. DR, since the appellant had subsequently registered with the Department on 31st August, 2012 (certificate issued on 14.09.2012), the application for refund filed for the period 01.07.2012 to 31.08.2012 will not be admissible. 4. Heard t .....

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at the appellant being an exporter of taxable services, was not in a position to utilise the entire cenvat credit taken on the input services, and accordingly, applied for refund of such unutilised cenvat credit in terms of Rule 5 of the said Rules. No stipulation or embargo has been created in the Rule 5 of the rules that refund of cenvat credit can be denied in absence of Registration Certificate issued by the Service Tax Authorities. It is for some other purpose, the requirement of registrati .....

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e benefit of refund, to which, the appellant is legally entitled to. 6. I also find that the judgement cited by the ld. Chartered Accountant for the appellant in the case of mPortal India (supra) squarely applies to the facts of the present case, wherein it has been held that in absence of a statutory provision prescribing the condition that registration is mandatory, the authorities cannot take the view that the assessee shall not be entitled to the benefit of refund. I also find that placing r .....

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