M/S. Flemmings Bpo Pvt. Ltd vs Commissioner Of Service Tax, Chennai
- CitationAppeal No.226/2010 (MST), dated 16.12.2010 passed by the Commissioner of Central Excise
Ratio decidendi
The rule this decision rests on
Paragraph 4 upholds the Commissioner (Appeals)'s disallowance of Cenvat credit on the ineligible services, because the appellant produced nothing to justify reversing that finding; no legal principle is stated there beyond affirming the factual finding. The reasoning on the pre-registration service tax rests on the following principle: registration under the service tax provisions is prescribed only for the purpose of maintaining accounts and following the procedure of law, and so it cannot be treated as a mandatory precondition to the grant of a refund of unutilised Cenvat credit on service tax paid in respect of exportable services; accordingly, service tax paid before registration is refundable, and the authority below is to allow the refund to that extent.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.226/2010 (MST), dated 16.12.2010 passed by the Commissioner of Central Excise (Appeals), Chennai]
M/s. FLEMMINGS BPO PVT. LTD. APPELLANT
Versus
COMMISSIONER OF SERVICE TAX, CHENNAI RESPONDENT
Appearance:
For the Appellant Shri S. Ramachandran, Cons.
For the Respondent Shri M. Rammohan Rao, JC (AR)
CORAM:
Honble Shri D.N. Panda, Judicial Member
Date of hearing/decision 13-08-2015
FINAL ORDER NO. 41006 / 2015
Shri Ramachandran learned consultant submits that registration is not mandatory to grant refund of unutilized credit emerging out of the service tax paid in respect of exportable service. He relies on the decisions of Commissioner of Service Tax, Chennai Vs E-Care India Pvt. Ltd. reported in 2011 (22) S.T.R.529 (Tri.-Chennai) and mPortal India Wireless Solutions P. Ltd. Vs C.S.T. Bangalore reported in 2012 (27) S.T.R.134 (Kar.).
2. Revenue submits that learned Commissioner (Appeals) examined the case thoroughly and he came to the conclusion that the appellant availed Cenvat credit of service tax paid on three services, which are (i) Security Maintenance Service (ii) Housekeeping Service and (iii) Mobile Phone Service. Finding of the authority on the first two services is that those were not in relation to output service but the third one relates to the claim pertaining to the service tax paid prior to registration. Therefore, nothing being considerable no relief should be granted to the appellant.
3. Examined the records and heard both sides.
4. So far as the ineligible Cenvat credit is concerned, as recorded by learned Commissioner (Appeals), the appellant has no material to suggest reversing that part of the order. Accordingly, that is confirmed.
5. So far as service tax aid prior to registration is concerned, law is well settled by Honble Karnataka High Court and similar ratio followed by Tribunal in E-Care India Pvt. Ltd. (supra). The appellant is entitled to the Cenvat credit of the service tax paid prior to registration on the ground that the registration being prescribed only for the purpose of maintenance of accounts and for following procedure of law, it cannot be said that registration is mandatory to grant refund. Accordingly, only to the extent of refund claim pertaining to the service tax paid prior to registration is to be allowed by authority below as refund. Appeal partly allowed.
(Dictated and pronounced in open court)
(D.N. PANDA) JUDICIAL MEMBER
ksr 14-08-2015
DRAFT Remarks
I II III
Date of dictation 14.08.2015
Draft Order - Date of typing 14.08.2015
Fair Order Typing 14.08.2015
Date of number and date of dispatch 25.08.2015
4 ST/00183/2011
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