TMI Blog2018 (2) TMI 1416X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) Whether the decision of Customs, Excise Service Tax Appellate Tribunal, South Zonal Bench, Chennai (CESTAT for short) in allowing refund of Cenvat credit even without registration is correct? (2) Whether CESTAT is erred in not considering the safeguards, conditions and limitations as stipulated in the Appendix to the Notification No.27/2012-CE(NT) dated 18.06.2016 2. Short facts leading to the filing of the appeal are as follows: (a) M/s.BNP Paribad Sundaram Global Securities Operations Private Limited, Chennai, respondent an 100% EOU is engaged in providing Business Auxiliary Service and Business Support Service. (b) The respondent filed refund claim with Assistant Commissioner of Service Tax, Division III, for ₹ 71,36,924/- for the service tax paid on 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 a refund of ₹ 37,25,023/- and rejected the remaining amount on the ground of non-registration of the premises and ineligible CENVAT credit on car parking charges. The adjudicating authority rejected the refund on CENVAT credit, on the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I) of CENVAT credit Rules 02. Translation of exit clearance documents for employees 99 03. Rental charges for scrubbing machine 1548 04. Services received at 4th and 5th Floor of Menon Eternity, New Door No.165, St.Mary's Road, Alwarpet, Chennai-18 1596745 The premises were not registered at the time of export but subsequently obtained Registration. 05. Services received at international Tech Park Unit No.1 to 4, 11th Floor Taramani, Chennai 1241139 2869813 (d) Aggrieved by the above orders, the respondent filed the appeal before Commissioner (Appeals) viz., the first appellate authority. Commissioner (Appeals), vide combined order-in-appeal No.51 52 of 2016 dated 26.04.2016 set aside a portion of the order of the original authority and allowed the refund as detailed above. S.No. Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disallowance of CENVAT cerdit. (h) While the Commissioner (Appeals) decision allowing the credit in respect of Car Parking charges and Rental charges for scrubbing machine was found acceptable, the decision in respect of credit availed on the inputs received in the premises which was not registered prior to export but subsequently obtained Registration was found to be not legally correct and hence the Revenue filed an appeal before CESTAT. (i) The CESTAT vide FO No.40773-40779 dated 22.05.2017 has 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 int he case of M/s.Scionispire 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is extracted hereafter : Notification No.05/2006-Central Excise (N.T.) 14th March 2006 G.S.R. (E) In exercise of the powers conferred by rule 5 of the CENVAT Credit Rules, 2004 (hereinafter referred to as the said rules), and in supercession of the notification of the Government of India in the Ministry of Finance (Department of Revenue), No.11/2002 - Central Excise (NT), dated 1st March, 2002, published in the Gazette of India Extraordinary, vide number G.S.R.No.150(E), dated 1st March 2002, the Central Government hereby directs that refund of CENVAT credit shall be allowed in respect of : (a) input or input service used in the manufacture of final product which is cleared for export under bond or letter of undertaking; (b) input or input service used in providing output service which has been exported without payment of service tax, subject to safeguards, conditions and limitations, set out in the Appendix to this notification. 1. xxxxx 2. xxxxx Provided that xxxxx (a) xxxxx (b) xxxxx 3. The manufacturer or provider of output service, as the case may be, submits an application in Form A annexed to this notification to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt turnover to the total turnover for the given period to which the claim relates, i.e., Maximum refund ? total CENVAT credit taken on input services during the given period X export turnover / Total turnover ......... 7.5. Therefore, there is no merit in the submission advanced on behalf of the Revenue that the said notification would disentitle the claim of the Assessee qua refund of CENVAT credit. 6. On Questions of Law 1 and 3, the Hon'ble Division Bench, at paragraph Nos.8.4 to 8.7, considered thus 8.4.What is relevant to note is that Rule 5 of the 2004 Rules does not stipulate registration of premises as a necessary prerequisite for claiming a refund. 8.5.In so far as the Assessee in this case, is concerned, it had obtained registration of its premises way back on 23.01.2009. The record shows that allegation of non-registration of premises relates to another building, which was taken on lease by the Assessee and is located in Alwarpet, Chennai. Concededly, services were exported to a overseas Company, from this building which was not registered. Similarly, Rule 4 of the 1994 Rules, inter alia, provides that in case where a person is liable for paying ..... X X X X Extracts X X X X X X X X Extracts X X X X
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