Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

Comments

Print   |    |  Comment

PJ/CASE LAW/2015-16/2931

Whether registration pre-requisite for availing cenvat credit and claiming its refund?

Case:- DORLING KINDERSLEY (I) PVT. LTD. VERSUS COMMR. OF C. EX. & S.T., NOIDA
 
Citation:- 2015 (40) S.T.R. 598 (Tri. - Del.)
 
Brief facts:-The appellant provides Business Support Services to its clients situated in United Kingdom and also to clients situated within the Country. The appellant avails Cenvat credit of various input services used for providing such output service. Since Service Tax attributable to the provision of domestic services are very meager, there was no scope for utilising the entire cenvat credit of service tax taken on input services and accordingly, for the disputed period, the appellant had filed the refund application under Rule 5 of the Cenvat Credit Rules, 2004, claiming refund of the unutilised Cenvat credit. The refund application filed by the appellant for the quarter ending September, 2012 was partly denied to the appellant on the ground that the Cenvat credit from the period 1-7-2012 to 31st August, 2012 was taken prior to obtaining Service Tax registration by the appellant as a service provider. Further, Cenvat credit of Rs.129/- on the domestic courier service has also been denied on the ground that the said service has no nexus with the service exported by the appellant.
 
Appellant’s contention:-The ld. CA appearing for the appellant submits that the Cenvat Rules dealing with refund of unutilised Cenvat credit, no where specifies that the service provider has to be registered with the Service Tax authority for claiming refund of service tax. According to him, the refund claim under Rule 5 of the CCR, 2004 can only be filed by the service provider, in the eventuality, when the output service have actually been exported and the credit taken on the input services are not utilised due to any reason. With regard to disallowance of Cenvat credit on the domestic courier service, the submissions of ld. Chartered Accountant is that the said service is confirming to the definition of input service and being utilised for providing taxable service to the clients located in both within and outside the country, the credit on such service cannot be denied. He further submits that the said service is qualifying as input service for the purpose of taking Cenvat credit and its refund under Rule 5 cannot be denied to the appellant. To support his stand that refund claim cannot be denied on the ground of non-registration of the service provider, he relied on the judgement of Hon’ble Karnataka High Court in the case of mPortal India Wireless Solutions P. Ltd.v. C. S. T., Bangalore, reported in (2011) 16 taxmann.com 353(Kar.) = 2012 (27)S.T.R.134 (Kar.)and also decision of this Bench of this Tribunal in the case of M/s. ML Outsourcing Services Pvt. Ltd.v. Commissioner of Service Tax, reported in 2013 (12) TMI 621 - CESTAT, New Delhi.
 
Respondent’s contention:-  Per contra, the ld. DR appearing for the Revenue submits that Rule 4(1) of the Service Tax Rules and Notification No. 27/2012-C.E., dated 18-6-2012 specifically provides that the service provider has to statutorily required to be registered within 30 days from the commencement of the business activities, which in the present case has not been complied with by the appellant. According to the ld. D.R., since the appellant got itself registered after 60 days on 31st August 2012, Cenvat benefit by way of refund under Rule 5 of the rules is not permissible to the appellant. He further submits that the judgment of Hon’ble Karnataka High Court in the case of mPortal India (supra) is distinguishable from the facts of the present case, inasmuch as, the said judgment was delivered in the year 2011, whereas, the Notification No. 27/2012-C.E. (N.T.), dated 18-6-2012 was issued only in 2012, which is much later than the passing of judgment by the Hon’ble High Court. According to the ld. DR, since the appellant had subsequently registered with the Department on 31st August, 2012 (certificate issued on 14-9-2012), the application for refund filed for the period 1-7-2012 to 31-8-2012 will not be admissible.
 
Reasoning of judgment:- They find that substantial amount of Cenvat credit has been denied by the authorities below on the ground that the Service Tax registration has been taken belatedly after availing the Cenvat credit. Refund of Cenvat credit under Rule 5 of the Cenvat Credit Rules, 2004 entitles a service provider to claim refund of Cenvat credit, where the output services have been exported without payment of Service Tax. It is an admitted fact on record that the appellant being an exporter of taxable services, was not in a position to utilise the entire Cenvat credit taken on the input services, and accordingly, applied for refund of such unutilised Cenvat credit in terms of Rule 5 of the said Rules. No stipulation or embargo has been created in the Rule 5 of the rules that refund of Cenvat credit can be denied in absence of Registration Certificate issued by the Service Tax Authorities. It is for some other purpose, the requirement of registration has been provided in Rule 4 of the Service Tax rules as well as in the Notification dated 18-6-2012 and not for the purpose of Rule 5 of the Cenvat Credit Rules. In the present case, since the eligibility of the appellant to the Cenvat credit on the input services has not been disputed by the Department and the only ground taken for disallowance is on account of non-registration of the service provider, they are of the considered opinion that the same is not a valid ground for disallowance of the benefit of refund, to which, the appellant is legally entitled to.
They also find that the judgement cited by the ld. Chartered Accountant for the appellant in the case of mPortal India (supra) squarely applies to the facts of the present case, wherein it has been held that in absence of a statutory provision prescribing the condition that registration is mandatory, the authorities cannot take the view that the assessee shall not be entitled to the benefit of refund. They also find that placing reliance on the said judgment of the Hon’ble Karnataka High Court, this Bench of the Tribunal in the case of M.L. Outsourcing Services (Supra) has allowed the Cenvat credit by holding that registration of premises is not necessary for claiming the Cenvat credit.
With regard to the submissions of ld. DR that the judgement of Karnataka High Court in the case of mPortal India (supra) is distinguishable from the facts of the present case, they are of the view that the Notification dated 18-6-2012 (issued after delivery of the judgment in 2011) only prescribed the procedure for filing the refund claim and is no way connected with filing of refund claim under Rule 5 of the Cenvat Credit Rules, 2004. The said Notification having been issued in exercise of powers vested under Rule 5 of the said rules, where there is no specific prohibition been provided that refund has to be filed after registration of the service provider, in their opinion, the Notification dated 18-6-2012 will not override the provisions of Rule 5 of the rules for claim of refund of Service Tax by the service provider.
Denial of refund benefit on the courier service, without discussing the nature of utilisation of such service by the service provider cannot be a defensible ground to deny the benefit of refund, especially in view of the fact that the output service has been exported by the appellant.
In view of the above, they are of the considered opinion that the appellant is entitled for refund of Service Tax on the disputed input services and accordingly, they set aside the impugned order and allow the appeal in favour of the appellant.
 
Decision:- Appeal allowed
 
Comment:- The essence of the case is that refund claim under Rule 5 cannot be rejected on ground of non-registration of applicant because when there is no necessity to obtain registration for availing cenvat credit then there cannot be any prohibition of filing refund claim on grounds of non-registration. Output service having been admittedly exported, refund of accumulated credit on input service is admissible.

Prepared by:- Monika Tak

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com