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2016 (7) TMI 1127 - CESTAT CHENNAI

2016 (7) TMI 1127 - CESTAT CHENNAI - TMI - Refund of unutilized cenvat credit - export of services without taking registration - Rule 5 of Cenvat Credit rules 2004 read with Notfn No.5/2006-CE (NT) dt. 14.3.2006 - Held that:- The contention of the respondent is that under Section 69 of the Finance Act, 1994 read with Rule 4 of Service Tax Rules, 1994, registration under service tax legislation is required only for service providers who are liable to pay service tax and the respondent herein is p .....

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er No. 41069-41070/2016 - Dated:- 5-7-2016 - Shri P.K.Choudhary, Judicial Member For the Appellant : Shri R. Subramaniyan, AC (AR) For the Respondent : Shri T.R. Ramesh, Advocate ORDER Both the appeals filed by Revenue are arising out of a common order-in-appeal dt. 26.8.2011 and therefore they are taken up together for disposal. 2. The issue involved in these appeals is relating to refund claims filed by respondent of cenvat credit in respect of Business Auxiliary Service/Business Support Servi .....

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t without payment of excise duty in terms of Rule 5 of Cenvat Credit rules 2004 read with Notfn No.5/2006-CE (NT) dt. 14.3.2006 which provides for refund of cenvat credit which remains unutilized on account of exports. The original authority vide OIO No.115/2010 and No.116/2010 both dt. 7.5.2010 had sanctioned part amount of ₹ 5,95,446/- and ₹ 40,97,199/- as eligible refunds respectively. He rejected the claims of ₹ 42,72,807/- and ₹ 8,64,159/- in the OIOs as the amounts .....

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respondent preferred appeal before Commissioner (Appeals). The LAA modified the OIOs to the extent of granting relief to the respondent in respect of amounts which were related to the period before taking registration but sustained the OIOs in respect of input services which were not used in rendering the output service. Hence the Revenue has filed the present appeals before Tribunal for setting aside the OIA and for restoring the OIOs. 4. Shri R. Subramanian, A.C., Ld. A.R appearing on behalf .....

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Act/Rule, the person claiming such substantive benefit has to strictly follow the conditions and procedures prescribed therein. He stressed the point that refund of cenvat credit shall be allowed only in respect of the registered premises of the service providers from which the output services are exported is situated. He therefore prayed that impugned order may be set aside and the respective OIOs may be restored. 5. Shri T.R. Ramesh, Ld. Advocate appearing on behalf of the respondent-assessee .....

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mandatory for claiming credit in respect of inputs / input services; that Notfn 5/2006-CE (NT) merely prescribes the jurisdiction for refund sanctioning authority where the registered premises of service provider is situated and nowhere it states that the service exporter is not entitled for refund on input services in case the invoices were dated prior to registration. He relied on the following citations :- (1) Textech International (P) Ltd. Vs CST Chennai 2011 (21) STR 289 (Tri.-Chennai) (2) .....

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he Finance Act, 1994 read with Rule 4 of Service Tax Rules, 1994, registration under service tax legislation is required only for service providers who are liable to pay service tax and the respondent herein is predominantly engaged in the provision of export of service and therefore they are not liable to pay service tax and consequently not required to register with the department. The respondent has placed reliance on the judgement of Karnataka High Court in the case of mPortal India Wireless .....

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stration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside." The above ruling of Hon ble High Court is squarely applicable to the facts of this case. The case law of Textech International (P) Ltd. (supra), relied upo .....

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