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2016 (5) TMI 180 - CESTAT CHENNAI

2016 (5) TMI 180 - CESTAT CHENNAI - TMI - Refund claim - Rejected on ground of (a) invoices on which credit has been availed and refund claim pertaining to unregistered premises, (b) inputs invoice on which refund claimed does not pertain to the claim period and (c) ineligible input services - export of services - Cenvat credit in respect of unutilized input credit was accumulated in the record of the assessee and when refund thereof was claimed, the said was disallowed by the adjudicating autho .....

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ground to reject refund of cenvat credit to the assessee. Therefore, the appeal is allowed in so far as the aspect of additional premises is concerned. - The submissions of both the sides, are at factual variance in as much as the appellant had contended that they had shifted their business premises to a new address and the respondent revenue contends that they had registered with the department only on 25-05-2010. The above stated judgment is wide enough to cover both the situations and th .....

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nsportation of inputs. Therefore, the impugned order is set aside. - Decide in favour of appellant - Appeal Nos.ST/41606 to 41608/2015 - Final Order No.40703-40705/2016 - Dated:- 7-4-2016 - SHRI P.K. CHOUDHARY, JUDICIAL MEMBER For the Appellant : Shri S.Vinod, Consultant For the Respondent : Shri R. Chandrasekaran, AC (AR) ORDER All the three appeals are taken up together for disposal as they arise out of a common impugned order-in-appeal. 2. The appellant herein are the service provider registe .....

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s provided by the appellant qualifies as 'export' in terms of Export of Service Rules, 2005. The service tax paid on input services used for providing export services remain unutilized as services are allowed to be exported without payment of tax. The refund claims were filed under Rule 5 of CCR 2004. The adjudicating authority while passing the OIO have rejected the some of the refund claims on account of (a) invoices on which credit has been availed and refund claim pertaining to unreg .....

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e tax department only on 25.5.2010 and argues that since the appellant is already registered with the service tax department and has been complying with the statutory requirements by filing the periodical returns and disclosing all the transactions, the allegation of the department is not valid. He mentions that Rule 5 of the CCR 2004 does not impose any such condition as observed by the lower authorities. In support of his contention, he relied on the judgement of Hon'ble High Court of Karn .....

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e of Clearpoint Learning Systems (I) Pvt. Ltd. Vs CCE Pune - 2015 (37) STR 149 (Tri.-Mum.). 4. On the issue of ineligible input service, he submits that the learned Commissioner (Appeals) has observed that the input services in relation to Customs Clearing Services is not directly used for providing output service, and therefore, it does not qualify as an eligible input. In this regard, he drew my attention to para 8.6 of the OIA. He submits that ld. Commissioner (Appeals) relied on judicial dec .....

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also included "activities relating to business" and in support of his contention, he relied on the judgement of the Hon'ble Bombay High Court in the case of Coca Cola India Pvt. Ltd. Vs CCE Pune - 2009 (15) STR 657 (Bom.) and CCE Nagpur Vs Ultratech Cement Ltd. - 2010 (20) STR 577. 5. Shri R. Chandrasekaran, A.C. (A.R) appearing on behalf of Revenue reiterated the findings of the OIA and submitted that provider of output service is required to get himself registered under the prov .....

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e (f) which states that in any other case, the 'relevant date' is the date of payment of duty. He submits that by applying the said section, the claim is hit by limitation. Ld. A.R relied on the findings of Commissioner (appeals) and also relied on the judicial decisions which have been discussed in the OIA at para 7.1. 5.2 Regarding the issue of ineligible input service, he relied on the Hon'ble Supreme Court decision of Maruti Suzuki Ltd. Vs CCE Delhi -2009 (240) ELT 641 (SC) and T .....

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n is not a criteria to allow refund when the output service is not liable to duty or tax. The decision of Hon'ble Karnataka High Court in the case of mPortal India Wireless Solutions P. Ltd. Vs CST Bangalore 2012 (27) STR 134 (Kar.) is squarely applicable to the facts of the instant case wherein the High Court has held that limitation under Section 11B does not apply to refund of accumulated cenvat credit and therefore bar of limitation cannot be a ground to reject refund of cenvat credit to .....

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ated 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 a accumulated Cenvat credit. Therefore, bar of limitation cannot be a ground to refuse Cenvat credit to the assessee. 7. Insofar as requirement o .....

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