Case Law Details
CESTAT, CHENNAI BENCH
Commissioner of Service Tax, Chennai
Versus
Varizon Data Services (I) (P.) Ltd.
STAY ORDER NO. 369 OF 2012
FINAL ORDER NO. 517 OF 2012
ST/S/419/2011 & ST/654/2011
MAY 9, 2012
ORDER
Mrs. Archana Wadhwa, Judicial Member
Being aggrieved by the order passed by the Commissioner (Appeals), the Revenue has preferred the present appeal along with the stay petition.
2. After hearing both sides, we find that the short issue involved in the present appeal is as to whether the respondents are entitled for refund of service tax prior to their registration with the service tax department. The Commissioner (Appeals) by following the Tribunal’s decisions in the case of Textech International (P) Ltd. v. CST [2011] 33 STT 233 in the case of CST v. E-Care India (P.) Ltd. [2012] 23 taxmann.com 271 (Chennai – Cestat) has held in favour of the respondents.
3. 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 their against before the Hon’ble High Court. Ld. AR appearing for the Revenue however, fairly concedes that there is no stay of operation of the said decisions of the Tribunal. At this stage, we also note that the Hon’ble Karnataka High Court, in the case of mPortal India Wireless Solutions (P) Ltd. v. CST [2012] 34 STT 322 has discussed an identical issue and has held as under:
‘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 a registration is not made 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, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside.’
4. In as much as the issue stands decided by the Hon’ble Karnataka High Court, we do not consider it fit to keep the present appeal on records. By following the Karnataka judgement, Revenue’s appeal is rejected. The stay petition as also the appeal gets disposed of in the above terms.
