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2016 (5) TMI 1002 - CESTAT CHENNAI

2016 (5) TMI 1002 - CESTAT CHENNAI - TMI - Period of limitation - Entitlement of refund claim - Cenvat credit on input Service tax paid prior to its registration - no time limit prescribed by Rule 5 of Cenvat Credit Rules, 2004 to refund the un-utilized cenvatable credit - Held that:- so far as the grant of Cenvat credit which pertains to the pre-registration period is concerned, Hon’ble High court of Karnataka in the case of mPortal India Wireless Solutions Pvt. Ltd. Vs. CST, Bangalore [2011 (9 .....

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n No. 5/2006-CE (NT) dated 14.03.2006 as amended by Notification No. 13/2007 -CE (NT) dated 01.03.2007 shall be applicable to the case of Respondent. The condition prescribed by 3(b) in the appendix of Notification is necessarily to be fulfilled along with other conditions prescribed therein. Therefore, the Ld. adjudicating authority upon remanded of this matter shall carry out scrutiny of refund claim on above terms as well the conditions prescribed by Notification concerned. - Matter remanded .....

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is no time limit prescribed by Rule 5 of Cenvat Credit Rules, 2004 to refund the un-utilized cenvatable credit. 2. Revenue submits that law is well settled that when grant of refund is permitted under law that is granted in accordance with the statutory provisions relating to sanction of refund as enacted in Section 11 B of the Central Excise Act, 1944. That cannot be given go bye as has been held in the case of CCE, Coimbatore Vs. GTN Engineering (I) Ltd.- 2012 (28) STR 426 (Mad.). 3. It was f .....

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ed cenvatable credit, it was to undergo scrutiny by Revenue, to determine eligibility to the refund, determination of quantum thereof and satisfaction of the conditions of the Notification. Respondent is also required to satisfy that there is no possibility of utilisation of the unutilised credit as well as the claim is not time barred. Added to this, the responded has to satisfy the Authority whether foreign exchange realisation was made by it as per Notification. The procedure thereto as requi .....

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t of Karnataka in the case of mPortal India Wireless Solutions Pvt. Ltd. Vs. CST - 2012 (27) STR 134 (Kar.). 6. Respondent also submits that it was under the conception that pre-registration credit may not be granted to it, for which it did not pursue the refund thereof under Rule 5 of Cenvat Credit Rules, 2004. But such a mis-conception was ruled out under legal advice for which the respondent conceived that it is entitled thereto, and such a credit not being utilized in the past, it claimed re .....

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d before that authority to satisfy that appropriate foreign exchange was realized. 8. Heard both the sides and perused the records. 9. It is noticeable fact that respondent was an exporter of services and it claimed that Cenvat credit was earned by it during its un-registered period. It has also not availed such credit for which refund thereof has been claimed under Rule 5 of Cenvat Credit Rules, 2004. 10. It is elementary principle of jurisprudence that every grant of the statute is governed by .....

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nt if at all shall be entitled to refund of pre- registration credits, shall be governed by law of limitation under Section 11 B and limitation shall be counted from date of export of service. Para-15 of the decision of the Hon ble High Court of Madras in the said case reads as under:- 15. A reading of the above rule, though there is no specific relevant date is prescribed in the notification, the relevant date must be the date on which the final products are cleared for export. If any other con .....

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Engineering (I) Ltd. (supra) was delivered in the context of export of goods, Cenvat Credit Rules, 2004 being a composite rule dealing with the goods as well as service, the date of export of goods shall be relevant date and limitation shall be counted from such date. 12. So far as the grant of Cenvat credit which pertains to the pre-registration period is concerned, Hon ble High court of Karnataka in the case of mPortal India Wireless Solutions Pvt. Ltd. Vs. CST, Bangalore - 2012 (27) STR 134 ( .....

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