Madras High Court
The Commissioner Of Gst & Central vs M/S.Rakindo Kovai Township on 24 February, 2021
CMA.No.3020 of 2019
In the High Court of Judicature at Madras
Dated : 24.2.2021
Coram :
The Honourable Mr.Justice T.S.SIVAGNANAM
and
The Honourable Ms.Justice R.N.MANJULA
Civil Miscellaneous Appeal No.3020 of 2019
The Commissioner of GST & Central
Excise, Chennai North Commissionerate,
Chennai-34. ...Appellant
Vs
M/s.Rakindo Kovai Township
Ltd., Chennai-18. ...Respondent
APPEAL under Section 83 of Chapter V of the Finance Act, 1994
read with Section 35G of the Central Excise Act, 1944 against final
order No.42918/2018 dated 20.11.2018 passed by the Customs,
Excise and Service Tax Appellate Tribunal, South Zonal Bench,
Chennai.
For Appellant : Mr.V.Sundareswaran, SSC
For Respondent : Mr.M.P.Senthilkumar for Mr.G.Baskar
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CMA.No.3020 of 2019
Judgment was delivered by T.S.SIVAGNANAM,J
We have elaborately heard Mr.V.Sundareswaran, learned Senior
Standing Counsel appearing for the appellant and Mr.M.P.
Senthilkumar, learned counsel appearing on behalf of Mr.G.Baskar,
learned counsel on record for the respondent.
2. This appeal filed by the Revenue under Section 83 of Chapter
V of the Finance Act, 1994 read with Section 35G of the Central Excise
Act, 1944 is directed against final order No. 42918/2018 dated
20.11.2018 passed by the Customs, Excise and Service Tax Appellate
Tribunal, South Zonal Bench, Chennai (for short, the Tribunal).
3. The Revenue has filed this appeal by raising the following
substantial questions of law :
“1. Whether the order of the Tribunal is
perverse and contrary to the admitted facts
and circumstances of the case?
2. Whether the Tribunal was right in
holding that the respondent is entitled for
credit of service tax paid by them prior to
registration with the Department ?
3. Whether the Tribunal is right in
holding that the respondent was entitled for
CENVAT credit prior to rendering any service
nor getting registered with the Service Tax
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CMA.No.3020 of 2019
Department when the decisions relied upon
are sub-judice in the Apex Court? and
4. Whether the Tribunal was correct in
ignoring the specific provision in the statute
that services received from outside India, on
which, service tax is to be paid cannot be
treated as output service for the purpose of
taking CENVAT credit ?”
4. We need not labour much to answer the substantial questions
of law raised for consideration as they have been answered in several
decisions.
5. We may at this juncture refer to the decision of the Karnataka
High Court in the case of Commissioner of Service Tax, Bangalore
Vs. Aravind Fashions Ltd. [reported in (2011) 16 Taxmann.com
372] wherein it was held that though the assessee therein was a
recipient of service, the service provider being outside India, the
assessee therein was to be treated as a service provider and that
therefore, the assessee therein was entitled to use CENVAT credit
available with it to discharge service tax on the service rendered. The
above referred to decision would necessitate us to answer substantial
question of law No.4 in favour of the assessee. Accordingly,
substantial question of law No.4 is answered in favour of the
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CMA.No.3020 of 2019
assessee.
6. With regard to substantial question of law Nos.2 and 3, they
were also decided in favour of the assessee. We may refer to the
decision of the High Court of Karnataka in the case of mPortal India
Wireless Solutions (P) Ltd. Vs. Commissioner of Service Tax
[reported in (2011) 16 Taxmann.com 353] wherein it was held
that the service tax registration was not mandatory for refund of
accumulated CENVAT credit of service tax paid on input service used
for export of service. A similar view was taken in the decision of the
Hon'ble Division Bench of this Court in the case of Commissioner of
GST & Central Excise, Chennai South Commissionerate Vs. BNP
Paribas Sundaram Global Securities Operations Pvt. Ltd. [CMA.
No.3493 of 2017 dated 22.12.2017] wherein the substantial
questions of law were answered in favour of the assessee. Thus,
following the above two decisions, substantial question of law
Nos.2 and 3 are answered in favour of the assessee.
7. So far as the first substantial question of law is
concerned, it is not a question of law and it is general in nature
and hence, the same is rejected.
8. For all the above reasons, the above civil miscellaneous
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CMA.No.3020 of 2019
appeal is dismissed by answering substantial question of law Nos.2, 3
and 4 against the Revenue. No costs.
24.2.2021
To
The Customs, Excise and Service Tax Appellate Tribunal, South
Zonal Bench, Chennai
RS
https://www.mhc.tn.gov.in/judis/
CMA.No.3020 of 2019
T.S.SIVAGNANAM,J
AND
R.N.MANJULA,J
RS
CMA.No.3020 of 2019
24.2.2021
https://www.mhc.tn.gov.in/judis/
