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Judgment
Jayant M. Patel, J.—1. The appellant-Revenue has preferred the present appeal by raising the following substantial question of law:
"WHETHER, the provisions contained in Rule 3 and 4 of the Service Tax Rules 1994 are mandatory or procedural in nature and the service provider can avail the benefit of availment of cenvat credit and refund of un-utilised cenvat credit without registration?"
We have heard Mr. Jeevan Neeralgi, learned Counsel appearing for the appellant-Revenue.
We may record that the Tribunal in the impugned order dated 19.03.2015 in case No. ST/1768/2011-SM at paragraph-2 has observed thus:
"2. The learned counsel submits that as regards the first issue, it is covered by the decision of the Hon''ble High Court of Karnataka in the case of mPortal India Wireless Solutions Pvt. Ltd. Vs. CST, Bangalore [, 2012 (27) STR 134 (Kar)]. I find myself in agreement with this and therefore on this ground, claim could not have been rejected. As regards nexus, he has submitted a statement showing each service, name of the output service and justification. On going through the statement which is reproduced below under each category of service, I consider that the appellant has made out a case as regards nexus."
After reproduction of the various services rendered by the respondent-assessee at para-3, it has been observed as under:
In view of the above, appellant has made out a case for eligibility for refund claim. Accordingly, the appeal is allowed with consequential relief, if any, to the appellant.
As such, if the Tribunal has followed the decision of this Court in case of M/s. mPortal India Wireless Solutions Private Limited (supra), it cannot be said that any substantial question of law would arise for consideration. However, the learned Counsel for the appellant-Revenue made an attempt to contend that the view taken by this Court in the above referred decision may require reconsideration because as per him, certain provisions and more particularly of Section 69 of the Registration of service provider has not been considered. He therefore submitted that the matter may be considered accordingly.
We may record that this Court in its decision in case of M/s. mPortal India Wireless Solutions Private Limited (supra), for the purpose of refund vis-�-vis registration at para-7 observed thus:
"7. 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 prescribes 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.
The learned Counsel for the appellant has not been able to show that there was any liability on the part of the respondent-assessee to pay service tax which was required to be paid and which was required to be adjusted against cenvat credit or that the respondent-assessee was not entitled to the refund.
On the contrary, as per the learned Counsel for the appellant-Revenue, the service which was being provided by the respondent-assessee was exempted from the payment of service tax.
The learned Counsel has not been able to show any provision even under Rule 5 of Cenvat Credit Rules, which provides for condition precedent for registration of the service provider.
In view of the above, we do not find that a different view deserves to be taken than was taken by co-ordinate Bench of this Court in case of M/s. mPortal India Wireless Solutions Private Limited (supra).
Under the circumstances, no substantial questions of law arise for consideration as sought to be canvassed. Hence, the appeal is dismissed.