In Commissioner of Service Tax v. CESTAT & Anr, the division bench of the Madras High Court held that Cenvat credit cannot be disallowed on mere ground that the assessee has not registered the premises under the Central Excise Act.
In the instant case, the refund claim made by the Assessee, was rejected on ground that the additional building taken on lease was not registered with the concerned Authority. On appeal, the CESTAT allowed the assessees’ appeal and directed the authority to allow the credit. Aggrieved by the order, the department approached the High Court.
Analyzing the relevant clauses of Notification No. 05/2006, the division bench comprising of Justice Rajiv Shakdher and Justice R. Suresh Kumar observed that, a bare perusal of the said provisions would show that in so far as the provider of output services is concerned, for making an application for refund of CENVAT Credit, he is required to file an application in the prescribed form, i.e., Form A, which is annexed to the notification, and the said application is required to be made to the Deputy Commissioner of Central Excise, or, the Assistant Commissioner of Central Excise, as the case may be. In so far as the jurisdiction of the concerned Officer is concerned, in the opinion of the Court, the same is fixed, in consonance with the location of the registered premises of the service provider, from which, the output service are exported. Furthermore, the application is required to be accompanied with a copy of the relevant invoices and a certificate from the bank, indicating therein, the realization of export proceeds.
“Apart from the aforesaid, there is no limitation. Clearly, the notification does not prohibit the grant of CENVAT credit, even, if, the premises are not registered. The fixation of jurisdiction of the concerned officer, to whom, an application is to be made, by correlating it, with the location of the registered premises, cannot, to our minds, by implication, be read in a manner that it obliterates the rights of the exporter of output services, to claim refund of CENVAT credit,” the bench said.
Read the full text of the Judgment below.
