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Commissioner of Service Tax, Chennai-II Versus SCIOinspire Consulting Services (India) Pvt. Ltd.

2016 (10) TMI 41 - CESTAT CHENNAI

Refund claim - service tax paid on input service credit taken during the period October 2012 to December 2012 - denial of refund on renting of immovable property service on account of non-registration of the premises - Held that:- in the case of KLA Tencor Software Private Limited Vs CST, Chennai [2016 (6) TMI 447 - CESTAT CHENNAI], it was held that registration is not a mandatory condition to avail refund under the Notifications prescribed by placing reliance on the ruling of mPortal Wireless S .....

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he same shall be taken till the last day of the given period, namely the quarter, the claim for refund can only be filed after the last date of the respective quarter and the relevant date is the date of export and are entitled in terms of Notification No. 27/2012 dated 18.06.2012 read with Section 11 B of CEA, 1944, and the refund claim is not hit by limitation. As per Rule 5 of CCR, 2004, in case of export of services, export is complete only when foreign exchange is received in India. This as .....

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he Respondent ORDER Since the issue involved in this appeal lies in a narrow compass, after disposing the stay application filed by Revenue, the appeal itself is taken up for hearing and decision. 2. The brief facts of the case are that M/s. SCIO Inspire Consulting Services (India) Pvt. Ltd., the appellant herein are registered with the Service Tax for providing IT and Business Auxiliary Service (BAS). The respondent assessee filed a refund claim of ₹ 4,56,924/- being the service tax paid .....

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e. Revenue is aggrieved by this order and on appeal before this Tribunal. 3. Ld. A.R, Shri P.Anbuchelvan, Superintendent reiterated the findings of the adjudicating authority and the Commissioner (Appeals) and submitted that the adjudicating authority has rightly denied the input service credit of ₹ 3,70,467/- on the ground of ineligible input services and limitation. However, the Commissioner (Appeals) set aside the impugned order to the extent of rejection of refund claim as time barred .....

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for the period October 2012 to December 2012 was filed only on 31.10.2013. He submitted that the date of invoice should be the relevant date and not the date of export and Notification No. 27/2012 - CE (NT) prescribes a condition for grant of refund and the same has to be implemented and applied and it mandates that one claim should be filed for a quarter is only to restrict the number of claims and not to override the provisions of Section 11B. Hence, he prayed that the impugned order may be s .....

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of the Tribunal in the case of CST, Goa Vs. Ratio Pharma India Pvt. Ltd. - 2015 (39) STR 31 (Tri.- LB)., wherein it has been held that relevant date for determining the limitation period is the date of receipt of foreign exchange. Hence, he prayed that the department s view is not correct and the matter can be remanded to the LAA for verification of date of receipt of payment of foreign exchange to ascertain whether it is well within the period of limitation. He further submitted that this plea .....

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. Vs CST Bangalore 2012 (27) STR 134. 5. Heard both sides and perused the appeal records. Let me first take up the issue of denial of credit on the ground of non-registration of premises. I find that this issue has already been settled by the Hon'ble High Court of Karnataka in the case law relied upon by learned counsel in the case of mPortal India Wireless Solutions (P) Ltd. Vs CST Bangalore - 2012 (27) STR 134. The said Karnataka High Court's decision was followed by this very Bench vi .....

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he appellant 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 appellant has placed reliance on the judgement of Karnataka High Court in the case of mPortal India Wireless Solutions Pvt. Ltd. Vs ST - 2012 (27) STR 134. The Honble High Court at para-7 of its order has held as follows :- "7. Insofar as requirement of registration with the department as a .....

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istence 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. Another ruling that has been relied on by the appellant is that of Dorling Kindersley (I) Pvt.Ltd. Vs CCE & ST, Noida (supra) which is also on the aspect of denial of refund claim on the ground of non-registration and the same was held to be unsusta .....

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time bar since the refund claim was received after one year from the date of above said export invoice and hence rejected as ineligible credit. But, Commissioner (Appeals) dealt the limitation issue in depth and passed a detailed order and held that inasmuch as the refund is related to Cenvat credit taken during the given period and the same shall be taken till the last day of the given period, namely the quarter, the claim for refund can only be filed after the last date of the respective quart .....

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the authorities below. Hence, the matter is remanded to the adjudicating authority with the direction to verify the date of receipt of foreign exchange received in India to determine the relevant date of export to decide the limitation aspect. 7. I also find that in case of KLA Tencor Software Private Limited vs. CST, Chennai (Final Order No. 40917-40922/2016 dt. 9.6.2016), the matter had been remanded to the lower adjudicating authority to verify the claim based on the recent Notification No. .....

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