# Commissioner, Service Tax Commissionerate, Noida v. M/S Atrenta India Pvt. Ltd. Noida

- **Citation:** (2016) 8 ILRA 368
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-30
- **Bench:** Sudhir Agarwal, Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/commissioner-service-tax-commissionerate-noida-v-m-s-atrenta-india-pvt-ltd-noida-44258
- **Pages:** 7

## Headnote

Central Excise Act, 1944 - Cenvat Credit - Refund - Period prior to registration - Service tax registration
- Condition precedent - Notification 5/2006-C.E. (N.T.) - Rule 5 Cenvat Credit Rules 2004 - Input service
used in providing output service exported - Refund cannot be denied - Appeal dismissed

This appeal has arisen from judgment and order dated 15.12.2015 passed by Customs, Excise & Service Tax
Appellate Tribunal, Allahabad (hereinafter referred to as "Tribunal") in Excise Appeal Nos. 52520 and 53049 of
2014 whereby Tribunal has rejected appeal of Revenue against order passed by Commissioner allowing
refund to Assessee.(Para 1)

Learned Counsel for appellant contended that Assessee was registered with Department on 20.12.2011 but
refund was claimed for the period earlier thereto, i.e April 2011 to September 2011, and no refund therefore,
could have been claimed when Assessee was not registered(Para 2)

Held (Paras:- 15,20-23)
1.We do not find anything in the aforesaid rules which requireregistration as a condition or eligibility to claim
refund. Even Form-A no where suggests that any such condition must be observed.

2.The judgement of Madras High Court therefore, was clearly rendered in the facts of that case. Be that as it
may, we are inclined to accept the view taken by Karnataka High Court considering the fact that in the rules
of refund of Cenvat credit, we do not find any such requirement of registration as a condition precedent or
elegibility condition for claiming refund.

3.Moreover, if refund is otherwise admissible to a party by a Tax Department, interpretation to the Statute
which justify refund to the party must be given for the reason that State or Tax Department cannot be
expected to retain Revenue which legally is refundable to the party. It should not be allowed to be retained
when legally Revenue is not entitled to such money.
8 All. Commissioner, Service Tax Commissionerate, Noida Vs M/S Atrenta India Pvt. Ltd.
 Noida
369
4.Moreover, in Formica India Division v. Collector of Central Excise 1995(77) E.L.T 511 (S.C.) Court has also
observed that refund should not be denied on technical grounds. This shows that a view which does not
contradict with any express fiscal provision, should be taken in favour of Assessee, if there is any scope of two
views.

5.In view of above discussions, we answer the aforesaid question against appellant and dismissed this
appeal.

Case Law discussed:
1.mPortal India Wireless Solutions P. Ltd. Vs. C.S.T., Bangalore, 2012 (27) S.T.R. 134 (Kar.) - paras 3, 9, 11,
16
2.Commissioner of Central Excise, Coimbatore Vs. Sutham Nylocots - paras 3, 17, 18, 19
3.Commissioner of Service Tax Chennai Vs. E-Care India Pvt. Ltd., 2011 (022) S.T.R. 0529 - para 9
4.M/s Sutham Nylocots Vs. CCE, 2005 (188) E.L.T. 26 - para 9
5.M/s Intellirisk Management India Pvt. Ltd. Vs. CCE Noida - para 10
6.M/s IQORR India Services Pvt. Ltd. Vs. CCE Noida - para 10
7.Formica India Division Vs. Collector of Central Excise, 1995 (77) E.L.T. 511 (S.C.) - para 22

## Text

368 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 368
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J.

Central Excise Appeal No.- 214 Of 2016

Commissioner, Service Tax Commissionerate, Noida ...Appellant
Versus
M/S Atrenta India Pvt. Ltd. Noida ...Respondent

Counsel for the Appellant:
Krishna Agarawal

Counsel for the Respondent:

Central Excise Act, 1944 - Cenvat Credit - Refund - Period prior to registration - Service tax registration
- Condition precedent - Notification 5/2006-C.E. (N.T.) - Rule 5 Cenvat Credit Rules 2004 - Input service
used in providing output service exported - Refund cannot be denied - Appeal dismissed

This appeal has arisen from judgment and order dated 15.12.2015 passed by Customs, Excise & Service Tax
Appellate Tribunal, Allahabad (hereinafter referred to as "Tribunal") in Excise Appeal Nos. 52520 and 53049 of
2014 whereby Tribunal has rejected appeal of Revenue against order passed by Commissioner allowing
refund to Assessee.(Para 1)

Learned Counsel for appellant contended that Assessee was registered with Department on 20.12.2011 but
refund was claimed for the period earlier thereto, i.e April 2011 to September 2011, and no refund therefore,
could have been claimed when Assessee was not registered(Para 2)

Held (Paras:- 15,20-23)
1.We do not find anything in the aforesaid rules which requireregistration as a condition or eligibility to claim
refund. Even Form-A no where suggests that any such condition must be observed.

2.The judgement of Madras High Court therefore, was clearly rendered in the facts of that case. Be that as it
may, we are inclined to accept the view taken by Karnataka High Court considering the fact that in the rules
of refund of Cenvat credit, we do not find any such requirement of registration as a condition precedent or
elegibility condition for claiming refund.

3.Moreover, if refund is otherwise admissible to a party by a Tax Department, interpretation to the Statute
which justify refund to the party must be given for the reason that State or Tax Department cannot be
expected to retain Revenue which legally is refundable to the party. It should not be allowed to be retained
when legally Revenue is not entitled to such money.
8 All. Commissioner, Service Tax Commissionerate, Noida Vs M/S Atrenta India Pvt. Ltd.
 Noida
369
4.Moreover, in Formica India Division v. Collector of Central Excise 1995(77) E.L.T 511 (S.C.) Court has also
observed that refund should not be denied on technical grounds. This shows that a view which does not
contradict with any express fiscal provision, should be taken in favour of Assessee, if there is any scope of two
views.

5.In view of above discussions, we answer the aforesaid question against appellant and dismissed this
appeal.

Case Law discussed:
1.mPortal India Wireless Solutions P. Ltd. Vs. C.S.T., Bangalore, 2012 (27) S.T.R. 134 (Kar.) - paras 3, 9, 11,
16
2.Commissioner of Central Excise, Coimbatore Vs. Sutham Nylocots - paras 3, 17, 18, 19
3.Commissioner of Service Tax Chennai Vs. E-Care India Pvt. Ltd., 2011 (022) S.T.R. 0529 - para 9
4.M/s Sutham Nylocots Vs. CCE, 2005 (188) E.L.T. 26 - para 9
5.M/s Intellirisk Management India Pvt. Ltd. Vs. CCE Noida - para 10
6.M/s IQORR India Services Pvt. Ltd. Vs. CCE Noida - para 10
7.Formica India Division Vs. Collector of Central Excise, 1995 (77) E.L.T. 511 (S.C.) - para 22

(Delivered by Hon'ble Sudhir Agarwal, J.
&
 Hon'ble Dr. Kaushal Jayendra Thaker, J.)

1. This appeal has arisen from judgment and order dated 15.12.2015 passed by Customs,
Excise & Service Tax Appellate Tribunal, Allahabad (hereinafter referred to as "Tribunal") in
Excise Appeal Nos. 52520 and 53049 of 2014 whereby Tribunal has rejected appeal of Revenue
against order passed by Commissioner allowing refund to Assessee.

2. Learned Counsel for appellant contended that Assessee was registered with Department
on 20.12.2011 but refund was claimed for the period earlier thereto, i.e April 2011 to September
2011, and no refund therefore, could have been claimed when Assessee was not registered.

3. Shri Krishna Agarwal learned counsel appering for appellant relied on a Madras High
Court decision in Commissioner of Central Excise, Coimbatore versus Sutham Nylocots wherein
refund of duty for the period prior to registration of Assessee was denied. We find that in the
present case, Tribunal has followed a judgment of Karnataka High Court in mPortal India Wireless
Sollution P.Ltd. vs.C.S.T, Bangalore wherein it has been held that registration with Department is
not a pre requisit for claiming Cenvat Credit and therefore, refund cannot be denied for this reason
above.

4. Thus the only question up for consideration in this appeal is"whether appellant is
justified in denying refund to the Assessee for the period, prior to his registration with
Department".
370 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The Assessee M/s Atrenta India Private Limited is engaged inproviding Information
Services namely Information Technology Software Service falling under section 65(105)(zzzze) of
Chapter V of Finance Act, 1994 (hereinafter referred to as 'Finance Act, 1994').

6. Application for the period July 2011 to September 2011 was filed forclaiming refund of
Rs.6,09,808/- on 28.9.2012.

7. Application was rejected by Assistant Commissioner , Customs &Central Excise
Division-1 Noida (hereinafter referred to as "ACCCE"). The ground taken by ACCCE is that
Assessee was not registered during claim period hence not eligible to take refund of Cenvat Credit
under rule 3 of Rules, 2004 read with Rule 4 of Service Tax Rules 1994.

8. Assessee preferred an appeal before Commissioner(Appeals) whoallowed the same by
order dated 28.10.2013 and directed ACCCE to examine to claim of refund subject to verification
of documents etc.

9. Commissioner(Appeals) held that Adjudicating Authority wronglyinterpreted Section 69
of Finance Act 1994 read with Rule 4 of Export of Services Rule 2005 in observing that Assessee
was required to pay service tax, hence, was obliged to obtain service tax registration.
Commissioner(Appeals) held that service provided by Assessee were chargeable to 'Service Tax'
under section 65(105) of Finance Act 1994 but the same was not liable to pay service tax in terms
of Rule 4 of Export of Services Rules 2005. It also referred and relied on Tribunal's decisions in
Commissioner of Service Tax Chennai vs. E-Care India Pvt.Ltd.2011 (022) STR 0529 and M/s
Sutham Nylocots vs.CCE, 2005 (188) ELT 26. It held that in view of Karnataka High Court
judgment in mPortal India Wireless Solutions P.Ltd. versus C.S.T Bangalore 2012 (27)
S.T.R.134 (Kar.), service tax registration was not mandatory for refund of accumulated Cenvat
credit tax, paid on inputs Services, used for export services.

10. It is also said that a similar view that non registration of unit cannotbe a basis for
denial of refund especially when there is no such condition in notification for allowing benefit of
Cenvat credit in terms of Rule 5 of Cenvat Credit Rule, 2004 was taken by Tribunal at Delhi in M/s
Intellirisk Management India Pvt.Ltd. vs.CCE Noida in Excise Appeal No.2216-2217 of 2010
and M/s IQORR India Services Pvt.Ltd. vs.GCE, Noida in Excise Appeal No.2218-2223 of 2010
which have been accepted by Commissioner of Central Excise, Noida.

11. Appellant thereafter filed appeal before Tribunal at Allahabad whichhas been dismissed
by impugned judgment and order relying on the judgment of Karnataka High Court in mPortal
India Wireless Solutions P.Ltd.(Supra).

12. Learned counsel for appellant has placed before us the rules made forrefund of Cenvat
Credit vide Notification:5/2006-C.E(N.T) dated 14.3.2006. The aforesaid rules have been framed in
exercise of powers conferred by rule 5 of CENVAT Credit Rules 2004 and in supercession of
earlier Notification. It provides that refund of Cenvat Credit shall be allowed in respect of:
8 All. Commissioner, Service Tax Commissionerate, Noida Vs M/S Atrenta India Pvt. Ltd.
 Noida
371
(a). Input or input service used in the manufacture of final product which is cleared
for export under bond or letter of undertaking:

(b). Input or input service used in providing output service which has been
exported without payment of service tax.

13. Rule 2 & 3 state that claim for refund would be submitted not once forany quarter in a
calendar year and by manufacturer or provider of out put service by submitting an application in
Form-A. The said rules are quoted as under:

"(2) The claims for such refund are submitted not more than once for any quarter
in a calendar year

Provided that where, -

The average export clearances of final products or theoutput services in value
terms is fifty percent or more of the total clearances of final products or output services, as the case
may be, in the preceding quarter; or

The claim is filed by Export Oriented Unit, the claim forsuch refund may be
submitted for each calendar month

(3) The manufacturer or provider of output service, as the case may be, submits
an application in Form A annexed to this notification to the Deputy Commissioner of Central
Excise or the Assistant Commissioner of Central Excise, as the case may be, in whose jurisdiction.

(a) the factory from which the final products are exported is situated, along with
the Shipping Bill or Bill of Export, duly certified by the officer of customs to the effect that goods
have in fact been exported; or

(b) the registered premises of the service provider from which output services are
exported is situated, along with a copy of the invoice and a certificate from the bank certifying
realization of export proceeds."

14. Rule 4 provides that refund is allowed only in those circumstanceswhere a
manufacturer or provider of output service is not in a position to utilize the input credit or input
service credit allowed under rule 3 of said rules against goods exported during the quarter or
month to which the claim relates.

15. We do not find anything in the aforesaid rules which requireregistration as a condition
or eligibility to claim refund. Even Form-A no where suggests that any such condition must be
observed.
372 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Karnataka Hight Court in mPortal India Wireless Solutions P.Ltd. (Supra) has said in
paragraph 7, 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 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."

17. In Commercial of Central Excise versus Sutham Nylocotes (Supra), the decision of
Madras High Court, relied by appellant, three issues which came up for consideration:

1. Whether the Appellate Tribunal is correct in setting aside the orders passed by
the lower authorities with regard to payment of interest for the period in dispute namely, 1-4-2001
to 31-1-2002 when Section 11AB of Central Excise Act, 1944, which stands amended with effect
from 11.5.2001?

2. Whether the Appellate Tribunal is correct in holding that the respondent has not
misstated the description of the goods with intent to evade payment of duty when the respondent
has not disputed the descriptions of the goods as proposed by the Department and paid the duty?

3. Whether the Appellate Tribunal is correct in holding that since the respondent
has now registered with the Excise Department and is following the procedures and hence the
respondent can legitimately claim the benefit of Modvat credit on the yarns used in the
manufacture of fabrics for the period in dispute?

18. The third issue was considered by Madras High Court in paragraphs16 to 18 of the
judgment and it has observed that Assessee had not obtained Central Excise Registration Certificate
while manufacturing industrial fabrics and had not followed any Central Excise procedural
formalities while clearing such industrial fabrics. This fact was not admitted by Assessee. First
Appellate Authority held that Assessee had not fulfilled several conditions stipulated statutorily
such as duty paid, nature of inputs, use of duty paid inputs in the manufacture of dutiable finished
goods to substantiate their claim for Cenvat credit. Having said so, Madras High Court has further
observed in paragraph 17 that-

"First Appellate Authority pointed out that the Assessee had not satisfactorily
explained before the original authority or substantiated before the First Appellate Authority that
they are entitled to claim for Cenvat credit. This finding of fact recorded by the First Appellate
Authority has not been set at naught by Tribunal rather no reasons have been given by Tribunal for
permitting the credit to be availed by Assessee."
8 All. Commissioner, Service Tax Commissionerate, Noida Vs M/S Atrenta India Pvt. Ltd.
 Noida
373
19. It is in this background, Madras High Court in Commissioner of Central Excise versus
Sutham Nylocots (Supra) said in paragraph-18, as under:

"Admittedly, at the relevant point of time, Assessee was not registered with the
Department and in fact, it subsequently obtained registration from the Department and therefore, if
at all Assessee is entitled to any credit it would accrue only subsequent to the date of registration
with the Department. Even though Assessee claimed exemption on the ground that they had
subsequently registered with the Department, as regards liability as found in the order of
adjudication as well as in the order of Tribunal, we do not find any justifiable ground to accept the
plea of Assessee based on the exemption Notification alone that the registration being not a
mandatory one, Assessee would be entitled to the benefit of Modvat credit. "

20. The judgement of Madras High Court therefore, was clearly rendered in the facts of
that case. Be that as it may, we are inclined to accept the view taken by Karnataka High Court
considering the fact that in the rules of refund of Cenvat credit, we do not find any such
requirement of registration as a condition precedent or elegibility condition for claiming refund.
21. Moreover, if refund is otherwise admissible to a party by a TaxDepartment,
interpretation to the Statute which justify refund to the party must be given for the reason that State
or Tax Department cannot be expected to retain Revenue which legally is refundable to the party. It
should not be allowed to be retained when legally Revenue is not entitled to such money.

22. Moreover, in Formica India Division v. Collector of Central Excise 1995(77) E.L.T
511 (S.C.) Court has also observed that refund should not be denied on technical grounds. This
shows that a view which does not contradict with any express fiscal provision, should be taken in
favour of Assessee, if there is any scope of two views.

23. In view of above discussions, we answer the aforesaid questionagainst appellant and
dismissed this appeal.
----------
374 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 374
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2016

BEFORE

THE HON'BLE PANKAJ MITHAL, J.

Civil Revision No.- 123 Of 2016

Smt. Munesh Singh & Anr. ...Revisionists
Versus
Vinay Pal Singh & Ors. ...Opposite Parties

Counsel for the Revisionists:
Manish Goyal,Ankita Jain

Counsel for the Opposite Parties:
Ram Das Yadav

Guardians and Wards Act, 1890 - Sections 7 and 8 - Section 9 - Minor - Appointment of guardian -
"Ordinarily resides" - Territorial jurisdiction - Application for guardianship - Objection to jurisdiction -
Revision under Section 115 C.P.C. - Compelling circumstances - Permanent abode - Minor ordinarily
residing at Saharanpur - Revision dismissed.

A couple Ashwani Singh and Smt. Geetu Singh were residing at Saharanpur along with their minor son Aditya
Singh @ Adi, now aged about 2 and 1/2 years.(Para 1)

The husband Ashwani Singh happened to be originally resident of Meerut whereas the wife Geetu Singh of
Bareilly.(Para 2)

On 16.11.2014 Geetu Singh died in Saharanpur at her residence and in connection with her death, her
husband Ashwani Singh and parents of the husband Smt. Munesh Singh and Pitamber Singh were arrested. In
these circumstances, as there was no one to take care of the minor, he was given in custody of Prem
Prakash, maternal uncle (Mama) of the husband, who lived at Meerut. Accordingly, the minor started living
with Prem Prakash at Meerut w.e.f. 16.11.2014 after the unfortunate death of his mother. Later the parents
of the husband were released on bail but he himself continues to be in jail.(Para 3)

The maternal grandfather (Nana) Vijay Pal Singh of the minor on 09.12.2014 moved an application under
Section 7 & 8 of the Guardians and Wards Act, 1890 in the court of District Judge, Saharanpur for his
appointment as the guardian of the minor and his property. In the said application, the father and the
grandparents of the minor and maternal uncle of the father of the minor, were all arrayed as the
defendants(Para 4)

Held:(Para:-32,34-38)
1.The facts of this case reveal that the minor was residing at Saharanpur with his parents. He was removed
from there and shifted to Meerut on account of compelling circumstances otherwise he would have continued
to live at Saharanpur had the unfortunate tragic incident leading to the death of his mother had not taken