Whether refund of service tax allowed prior to registration with service tax department?

PJ/Case Laws/2012-13/1331

Case:- CST Chennai Vs M/s VARIZON DATA SERVICES (I) (P) LTD

Citation:- 2012-TIOL-1512-CESTAT-MAD

Brief Facts:- The appellant has filed service tax refund prior to their service tax registration. The issue involved in the present case is that whether the respondents are entitled to refund of service tax prior to their registration with the service tax department. The issue stands in favour of the appellant by the High court judgement. The Revenue has preferred the present appeal along with the stay petition.

Appellant Contentions:-The Revenue’s ground in the memo of appeal is that the said decisions relied upon by the commissioner (Appeals) do not stand accepted by the Revenue, who have filed an appeal before the High Court. Ld. AR appearing for the Revenue however accepts that there is no stay of operation of the said decisions of the Tribunal.

Respondent Contentions:-Respondent placed reliance on the judgements given in the following cases:
M/s Textech International (P) Ltd. Vs. CST, Chennai [2010-TIOL-1800-CESTAT-MAD]
Commissioner of Service Tax Vs. E-Care India Pvt. Ltd. [2011-TIOL-590-CESTAT-MAD]
mPortal India Wireless Solutions (P) Ltd. Vs. CST [2011-TIOL-928-HC-KAR-ST]
The Appellant submits that in the absence of a statutory provision that service tax registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, refund is admissible to them.Appellant has relied on judgment of Karnataka High Court on an identical issue.

Reasoning of Judgment:-The Tribunal has perused the case-laws and has discussed the Karnataka High Court decision in detail as follows:
“Insofar as requirement of registration with the department as a condition precedent for claiming Cenvat Credit is concerned, learned counsel appearing for both parties were unable to point out any provision in the Cenvat Credit Rules which impose such restriction. In the absence of a statutory provision which prescribed that registration is mandatory and that if such registration is not taken, 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, the said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside.”
In as much as the issue stands decided by the Hon’ble Karnataka High Court, it is not considered it fit to keep the present appeal on records. By following the Hon'ble Karnataka High Court judgement, Revenue’s appeal is rejected.

Decision:-Appeal rejected.

Comment:The analogy drawn from this case is that benefit cannot be denied to the assessee on grounds which are not mentioned anywhere in the provisions of the Act.

Comments

PJ/Case Laws/2012-13/1331

Post a Comment

Query