TMI Blog2018 (1) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... ness Auxiliary Service and Business Support Service. The respondent filed refund claim with the Assistant Commissioner of Service Tax, Division III, for ₹ 71,36,924/- for the service tax paid, on the input service tax credit taken, during the period January 2013 to March 2013 under Rule 5 of the CENVAT Credit Rules, 2004. The adjudicating authority sanctioned refund of ₹ 37,25,023/- and rejected the remaining amount on the ground of Non-Registration of premises and ineligible CENVAT credit on Car parking charges. The adjudicating authority rejected refund on CENVAT credit, on the following services, for the reasons stated, in the following Table, in Order-in-Original No.05/2016 dated 27.01.2016. S.No. Refund of CENVAT credit claimed on Rejected amount (Rs.) Reasons for rejection 01. Car Parking Charges 1557 Not an input service as per Rule 2(I) of CENVAT credit Rules 02. Challan for payment under reverse charges not submitted 17072 03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces received at International Tech Park Unit No.1 to 4, 11th Floor Taramani Chennai. 1241139 2869813 4.1. Aggrieved by the above orders, the respondent filed appeal before Commissioner (Appeals), viz., the first appellate authority. Commissioners (Appeals). Vide combined Order-in-Appeal No.51 and 52/2016 dated 26.04.2016, the first appellate authority set aside a portion of the order of the original authority, and allowed refund, as detailed below: S.No. Services Allowed by Commissioner (Appeals) OIO No.05/2016 OIO NO.12/2016 01. Car Parking Charges 1557 0 02. Rental Charges for scrubbing machine 0 1548 03. Services received at 4th and 5th Floor of Menon Eternity, New Door No.165, St.Mary's Road, Alwarpet, Chennai-18 1668253 1596745 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e FO No.40778 dated 22/05/2017 held inter alia that: (i) Revenue is aggrieved that the Commissioner (Appeals) has not appreciated the judgment of Hon'ble High Court in the case of Sutham Nylocots as reported in 2014 (306) ELT 255 (Mad.) (ii) Hon'ble High Court in the subsequent judgment passed on 10/04/2017 in the case of M/s Scioinspire Consulting Services has distinguished the facts contained in Sutham Nylocots. (iii) Hon'ble High Court agreeing with the views on identical issue of law taken by the Hon'ble High courts of Karnataka and Allahabad in mPortal India Wireless Solutions P Ltd., Tavant Technologies I P Ltd. Atrenta India has upheld the decision of the Tribunal that refund could be granted to the assessee even if the premises in issue were not registered. (iv) The judgment of the jurisdictional Hon'ble High Court is fully applicable to the facts and issue involved in respect of the impugned appeals. By holding the above, the Hon'ble CESTAT has dismissed the appeals filed by the Department. 6. Final order of CESTAT, Madras, No.40778 of 2017 dated 22.05.2017, is assailed on the following substantial questions of law :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ress provision to grant refund, that is difficult to entertain except in the case of export. There cannot be presumption that in the absence of debarment to make refund, in other cases that is permissible. Refund results in outflow from treasury, which needs sanction of law and an order of refund for such purpose is sine qua non. Law has only recognized the event of export of goods for refund of Modvat credit as has been rightly pleaded by Revenue and present reference is neither the case of otherwise due of the refund nor the case of exported goods. Similarly absence of express grant in statute does not imply ipso facto entitlement to refund. So also absence of express grant is an implied bar for refund. When right to refund does not accrue under law, claim thereof is inconceivable. Therefore, present reference is to be answered negatively and in favour of Revenue since refund of unutilized credit is only permissible in case of export of goods and for no other reason whatsoever that may be 10. Learned counsel for the appellant submitted that CESTAT, Madras, erred by stating that the respondent was entitled to credit and refund, in view of non-taxability of export service. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , conditions and limitations as stipulated in the Appendix to Notification No.05/2006-CE(NT) dated 14.03.2006? 3. Whether CESTAT i.e.Respondent No.1 is correct in applying the ratio of the judgment of the Hon'ble Karnataka High Court in the case of M/s.mPortal Wireless Solutions Private Limited when the said judgment was not accepted on merits but due to low revenue effects? 14. After considering the provisions, relevant notifications and decisions in M/s.mPortal India Wireless Solutions Private Limited V. Commissioner of Service Tax, Bangalore, reported in 2012 (27) S.T.R.134 (Kar.); in Commissioner of Service Tax V. Tavant Technologies India Private Limited, reported in 2016 (3) TMI 535; in Commissioner, Service Tax Commissionerate V. Atrenta India Private Limited, reported in 2017 (2) ADJ 590; and in Commissioner of Central Excise, Coimbatore Vs. Sutham Nylocots, reported in 2014 (306) E.L.T. 255 (Mad), a Hon'ble Division Bench, answered the above said substantial questions of law, raised therein, against the revenue. Following the decision in C.M.A.No.860 of 2017, dated 10.04.2017, instant Civil Miscellaneous Appeal No.3493 of 2017, filed by the revenue, on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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