2018 (7) TMI 1394 – MADRAS HIGH COURT – TMI – Refund of unutilized CENVAT Credit – Rule 5 of CCR 2004 – rejection of refund on the ground of non-registration of premises – Held that:- Reliance was placed in the case of mPortal India Wireless Solutions Private Limited V. Commissioner of Service Tax, Bangalore [2011 (9) TMI 450 – KARNATAKA HIGH COURT], where it was held that Registration not compulsory for refund – refund cannot be denied – appeal dismissed – decided against Revenue. – C.M.A. No. 1457 of 2018 Dated:- 9-7-2018 – S. Manikumar And Subramonium Prasad, JJ. For the Appellant : Mrs. R. Hemalatha JUDGMENT ( Judgment of this Court was made by S. Manikumar, J. ) Civil Miscellaneous Appeal is filed against the Final Order No.42324 of 2017, dated 11/10/2017, on the file of the Customs Excise and Service Tax Appellate Tribunal, South Zone Bench, Chennai. 2. Short facts leading to the appeal are that, M/s.Visual Graphics Computing Services India Pvt Ltd., Chennai are the provider of
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ted 11/10/2017, in allowing refund of CENVAT Credit even without registration is correct? 2. Whether the CESTAT is correct in not considering the safeguards, conditions and limitations as stipulated in the Appendix to the Notification No.27/2012-CE(NT), dated 18/6/2012 5. Supporting the prayer, Ms.R.Hemalatha, learned counsel for the appellant submitted that registration is an act by which every manufacturer/assessee/service provider, comes under the ambit of Central Excise Act, 1944 / Finance Act, 1994. In order to avail any substantive benefit, like, CENVAT Credit available under the statute, registration of premises from which the taxable service is rendered is a pre-requisite. Therefore, when registration has not been done as per Section 69 of the Act, the respondent is not entitled for refund of CENVAT read with rule 4(1) of the Rules which render them ineligible far CENVAT credit an input services accumulated prior to registration. 6. Learned counsel for the appellant further sub
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) vide para 5.16 held as follows: "Modvat law has codified procedure far adjustment of duty liability against Modvat Account. That is required to be carried out In accordance with law and unadjusted amount is not expressly permitted to be refunded. In absence of express 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. Wh
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adras, for deciding the appeal in favour of the respondent, was accepted by the department due to monetary limit and not on merits, and therefore, learned counsel for the appellant submitted that the ratio of the said judgment, should not have been taken as a binding precedent, in view of Section 35R (3) of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. The subsequent decision of CESTAT, Madras, vide FO No. 42500/2016 dated 20/12/2016 in the case of the same party viz., M/s Scioinspire Consulting Services (India) P Ltd. was also appealed in this Hon'ble Court, by the department vide CMA. Sr. No.54980 of 2017. 9. Learned counsel for the appellant further submitted that a Hon'ble Division Bench of this Court, in the case of Commissioner of Central Excise, Coimbatore Vs Sutham Nylocots, vide final order in CMA No.926/2006, dated 09.01.2014, reported in 2014 (306) E.L.T. 255 (Mad) held that 'if at all the assessee is entitled to any credit it would
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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?" 12. 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 10/4/2017, instant Civi
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