Goods and Services Tax

M/s. Esskay Design & Structures Pvt. Ltd. Versus Commissioner of GST & Central Excise

2018 (7) TMI 621 – CESTAT CHENNAI – TMI – Refund of unutilized CENVAT Credit – Rule 5 of CENVAT Credit Rules, 2004 – rejection on the ground that the premises has not been registered by the appellant before availing the credit – Held that:- The issue stands settled in the case of COMMISSIONER OF SERVICE TAX-III, CHENNAI VERSUS REED ELSEVIER PRIVATE LIMITED, CUSTOM, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, CHENNAI [2017 (4) TMI 1234 – MADRAS HIGH COURT], where it was held that Rule 5 of the 2004 Rules does not stipulate registration of premises as a necessary prerequisite for claiming a refund – refund cannot be rejected on this ground – appeal allowed – decided in favor of appellant. – Appeal Nos. ST/42235 & 42236/2017 – Final Order Nos. 41956-41957 / 2018 – Dated:- 9-7-2018 – Hon ble Ms. Sulekha Beevi C.S., Member (Judicial) Shri M. Kannan, Advocate for the Appellant Shri R. Subramaniam, AC (AR) for the Respondent ORDER Brief facts are that the appellants are engaged in providing c

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four grounds. Hence the appellant is now before the Tribunal. 3. The ld. counsel Shri M. Kannan submitted the details of the relevant claims which is as under:- S. No. Period of claim Amount claimed as refund 1. July 2014 to Sep. 2014 Rs.10,76,487/- 2. Jan. 2015 to March 2015 Rs.8,56,326/- 3.1 He submitted that the adjudicating authority had considered all the grounds in the adjudication order and held that the assessee is not required to fulfill the condition of filing declaration and therefore the proposal for rejection of the refund claim on this ground is not correct. With regard to the second ground that the service recipient and assessee are the same entity, it was clarified by the adjudicating authority that both these are different and distinct entities. In regard to the ground for rejection that the appellant has not mentioned the quantum of export in their ST-3 returns for April 2014 to September 2014, it was held by the adjudicating authority that this was merely an error in

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findings in the impugned order. He submitted that the grounds proposed for rejection are legal and proper and therefore the adjudicating authority ought not to have allowed the refund. 5. Heard both sides. 6. The foremost contention put forward by the ld. counsel for the appellant is that although the adjudicating authority has given a clear cut finding that rejection of refund on three grounds are not legal and proper, the Commissioner (Appeals) has traversed into these grounds and held against the appellant which is not proper. The department having not filed any appeal against the Order-in-Original, I find force in the contention of the ld. counsel. Thus, the rejection of refund as held by the Commissioner (Appeals) in the impugned order on the three grounds is incorrect and requires to be set aside, for the reason that the department has not appealed against the order passed by the adjudicating authority. 6.1 The issue that remains for consideration is whether the appellant is elig

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