By Puloma Dalal, Jayesh Gogri, Mandar Telang Chartered Accountants
fiogf49gjkf0d
Refund of CENVAT credit for want of registration at the time of exports and availment of CENVAT credit cannot be rejected. Subsequent registration shall also be considered sufficient compliance for refund of CENVAT credit.
Facts:
The Appellants claimed refund of accumulated CENVAT credit used for export of services. Refund claim was rejected on the premise that during the period of availment of CENVAT credit and making exports, the Appellants were not registered. It was contended that the issue is no longer res integra and it was squarely covered in case of mPortal India Wireless Solutions Pvt. Ltd. vs. CST, Bangalore 2012 (27) STR 134 (Kar.). The Department claimed that the said decision was not applicable to the facts of the case since the notification in the present case specifically requires export to be made from the registered premises. The Department placed reliance on the Hon’ble Supreme Court’s decision in case of CCE, New Delhi vs. Hari Chand Shri Gopal 2010 (260) ELT 3 (SC) wherein it was held that conditions of notification should be strictly followed and there cannot be any differentiation between substantive conditions and procedural conditions.
Held:
Para 3 of the said notification was related to submission of application and the reference to registered premises was for the limited purpose of determining where the refund claim shall be filed. There is no bar or prohibition in the law for making exports from unregistered premises. Relying on the decision of mPortal India Wireless Solutions Pvt. Ltd. (supra), the Tribunal observed that there is no condition of registration for availment of CENVAT credit in CENVAT Credit Rules, 2004. In fact, it is a settled law that an assessee is entitled to CENVAT credit even in cases of clandestine removal and during unregistered period. Once CENVAT credit is admissible and the same cannot be utilised and when the rule provides for refund, such refund cannot be rejected. In any case, subsequent registration, of the premises from where exports took place, is also enough. The decision in Hari Chand Shri Gopal (supra) was not applicable in the present case since there was no condition in the Notification which required the assessee to register the premises. Accordingly, refund claim was allowed. However, the matter was remanded to original authority for verification of the correctness of the amount claimed.
