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EMBITEL TECHNOLOGIES (INDIA) PVT. LTD. Versus COMMR. OF S.T., BANGALORE

Refund - Cenvat credit - Export of services before seeking service tax registration - Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 5/2006, dated 14-3-2006 - Held that:- In all cases where there has been evasion of service tax or central excise duty or there has been short-levy for whatever reason, the Tribunal and the Courts have taken consistent view that Cenvat credit would be admissible when the duty payment is made, provided assessee has all the documents and is able to sho .....

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il Cenvat credit or to claim refund holding that the prerequisite would be export from the registered premises. - appellant is eligible for the refund. However, for the purpose of verification of correctness of the amount claimed and scrutiny which has not been done earlier or which has not been considered to have been done in my order can be considered and the admissibility of refund decided in accordance with law without ignoring the observation in this order. - impugned orders are set aside - .....

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ith Notification No. 5/2006, dated 14-3-2006. The appellants claimed that they had used input services for export of output services from 16-5-2008 to June, 2008. 2. The refund claim has been rejected on the ground that during the period when the credit of service tax paid on input services was taken, the appellant was not registered. The Commissioner (Appeals) in her order has also observed that export should have taken place from the registered premises of the appellant and in this case, .....

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is case. He refers to Paragraph 7 of the impugned order wherein the learned Commissioner has pointed out that the export of service took place from unregistered premises and the Notification under which the refund has been claimed specifically provided that the export should take place from the registered premises. He draws my attention to the relevant provision in Notification No. 5/2006-C.E. (N.T.) and submits that since the appellant has not fulfilled the conditions, they are not eligible. He .....

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he appellant and he relies on Para 3 of the show cause notice. 5. I have considered the submissions made by both sides. 6. The relevant portions of the Notification relied upon by the learned AR to submit that conditions have not been fulfilled are reproduced for better appreciation. These are available in Para 3 of the Notification. 3. The manufacturer or provider of output service, as the case may be, submits an application in Form A annexed to this notification to the Deputy Co .....

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e from the bank certifying realization of export proceeds. First of all I am not convinced that this particular clause 3(b) is a condition to be fulfilled. Paragraph 3 relates to submission of an application and it requires that the registered premises of the service provider from which output services are exported should be in the jurisdiction of the concerned Dy. Commissioner. Therefore it cannot be considered as a condition to be fulfilled as regards exports to submit that export should have .....

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s no prohibition. Further, the Hon ble High Court of Karnataka in the case of mPortal India Wireless Solutions Pvt. Ltd. (supra) had decided that Cenvat credit would be admissible even when a manufacturer or a service provider is not registered. This was on the basis that in the Cenvat Credit Rules nowhere there is any registration clause for availment of Cenvat credit by a manufacturer or an output service provider. If Cenvat credit can be taken even before registration, the question arises by .....

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on Notification cannot introduce a condition which is beyond the provisions of the Rule also. At this juncture, learned AR submits that the Notification is not beyond the provisions of Rule 5. That is not the question. The question is whether there is a provision in Cenvat Credit Rules restricting a manufacturer or an output service provider to take the Cenvat credit. In fact it is a settled law that an assessee is entitled to Cenvat credit even when he has indulged in clandestine removal and he .....

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assessee was not registered, Cenvat credit could not have been taken. Once the credit was taken if it is admissible and when it accumulates and cannot be utilised, when the Rule provided for refund, such refund cannot be rejected. In any case, I have already taken a view that Paragraph 3(b) cannot be considered as a condition to avail Cenvat credit or to claim refund holding that the prerequisite would be export from the registered premises. 7. In fact another view is also possible. If the .....

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en registered to claim refund if during the time when he took the credit or when he exported, he had not taken registration. As regards the decision of the Hon ble Supreme Court, since I have taken a view that there is no such condition in the Notification requiring the assessee to compulsorily register before making a claim, the decision of the Hon ble Supreme Court would not be applicable to the facts of this case. 8. At this juncture, learned AR submits that he relies upon Paragraphs 5 a .....

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a 5 he has rejected the refund claim. His observation is that the Cenvat procedure is being followed thereafter. Since there is no observation at all whatsoever and he has also not chosen to make an observation that he is not examining the submissions made by the appellant because the refund claim is being rejected only on the ground of non-registration, I consider that he has closed the door to take up this issue afresh. Further, I also find that even Commissioner (Appeals) has not recorded any .....

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