Mpportal (India) Wireless Solutions ... vs Commissioner Of Service Tax ...
- CitationAppeal No. 99-2010
Ratio decidendi
The rule this decision rests on
The refund of CENVAT credit on input services that could not be utilised cannot be rejected on the ground that the output service is non-taxable, the Tribunal following the binding High Court decision on that question. Where the consideration for a service received from abroad is paid in a later period, the date of payment is the relevant date for determining limitation for a refund claim, as held in the Tribunal's earlier decision followed on this point, so the refund claim must be re-examined for limitation on that basis.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. 99-2010 dated 04/03/2010 passed by CCE(Appeals-II), Bangalore]
For approval and signature:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3 Whether Their Lordships wish to see the fair copy of the Order?
4 Whether Order is to be circulated to the Departmental authorities?
mPportal (INDIA) WIRELESS SOLUTIONS PVT LTD 562/640, JANARDHAN TOWERS, BANNERGHATTA ROAD, BILEKAHALLI, BANGALORE Appellant(s)
Versus
Commissioner of Service Tax BANGALORE-SERVICE TAX NULL 1ST TO 5TH FLOOR, TTMC BUILDING,above BMTC BUS STAND,DOMLUR BANGALORE, - 560071 KARNATAKA Respondent(s)
Appearance:
Shri B.G. Chidanand, Advocate For the Appellant
Shri S. Teli, Deputy Commissioner(AR) For the Respondent
Date of Hearing: 12/06/2015
Date of Decision: 12/06/2015
CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER
Final Order No. 21326 / 2015
Per : B.S.V.MURTHY
The refund claim filed by the appellant under the Notification No.5/2006 read with Rule 5 of CENVAT Credit Rules has been rejected on the ground that the output service was not taxable and a portion of the refund claim is time-barred.
2. Heard both the sides.
3. As regards non-taxability of output service and eligibility for refund of the CENVAT credit availed on the input services which could not be utilised, the Honble High Court of Karnataka in the case of mPortal India Wireless Solutions (P) Ltd. Vs. CST, Bangalore [2011-TIOL-928-HD-KAR-ST] has already held that the refund cannot be rejected on this ground. Therefore the appeal has to be allowed as far as this ground is concerned. As regards rejection of refund in respect of two months on the ground of limitation, the learned counsel submits that in the case of Apotex Research Pvt. Ltd. & others [2014-TIOL-1836-CESTAT-BANG], the Tribunal had held that in the case of service received from abroad, the date of payment of consideration would be the relevant date for deciding the limitation and submits that the matter may be remanded to the original adjudicating authority to consider the refund claim as far as limitation is concerned in the light of this decision. Learned AR has no objection. Accordingly the impugned order is set aside and the matter is remanded to the original adjudicating authority to consider the refund claim in the light of the observations made hereinabove.
(Order pronounced and dictated in open court)
B.S.V.MURTHY TECHNICAL MEMBER Raja 3
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