Qualcomm India Pvt. Ltd vs Commissioner Of Service Tax ...

[Arising out of Order-in-Appeal No. 481 & 482/2013 dated 30/09/2013 passed by Commissioner of Central Excise and Service Tax, BANGALORE-II (Appeal).]

For approval and signature:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK KUMAR ARYA, 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? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

Qualcomm India Pvt. Ltd Plot No.125-127, EPIP Phase II, Whitefield, BANGALORE  560 066. KARNATAKA Appellant(s)

Versus

Commissioner of Service Tax Bangalore-service Tax 1ST TO 5TH FLOOR, TTMC BUILDING, above BMTC BUS STAND,DOMLUR BANGALORE - 560071 KARNATAKA Respondent(s)

Appearance:

Ms. Rinkey Jassuja, Advocate PDS Legal 14, Mittal Chambers, 1st Floor, Nariman Point, Mumbai  400 021. For the Appellant

Mr. Mohd. Yousaf, Addl. Commissioner (AR) For the Respondent

Date of Hearing: 02/09/2015

Date of Decision: 02/09/2015

CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK KUMAR ARYA, TECHNICAL MEMBER

Final Order No. 21864-21865 / 2015

Per : ARCHANA WADHWA

After allowing the early hearing applications, we proceed to dispose of the appeals itself inasmuch as a short issue is involved.

2. The appellant is a 100% EOU. They filed refund claim of unutilized accumulated CENVAT credit in terms of provisions of 5 of the CENVAT Credit Rules, 2004. The said refund claims stand rejected by the lower authorities only on the short ground that they are registered under the category of Consulting Engineering Services whereas they are actually providing the software development services.

3. The grievance of the appellant is that the registration under a particular category is not a pre-requisite for claiming the refund. Learned advocate further submits that there is no dispute that they are exporting the services and as such are entitled to benefit of the refund claim. The Honble High Court in the case of mPortal India Wireless Solutions P. Ltd. vs. CST, Bangalore reported as 2012 (27) S.T.R. 134 (Kar.) has held that registration with the Department is not a pre-requisite for claiming the credit. As such irrespective of the fact that whether the appellant is registered under a particular category instead of another category, the refund would be admissible as long as there is export of services. As such, we set aside the impugned order and remand the matter to the original adjudicating authority for examining the appellants contention without raising the objection of registration. Needless to say that appellant would be given an opportunity to put forth their case and would be within their rights to meet the objections, if any, raised by the Revenue. Early hearing applications as also appeals are disposed for in above manner.

(Order pronounced in open court)

ASHOK KUMAR ARYA TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER

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