IN THE HIGH COURT OF KARNATAKA AT BENGALURU PRESENT THE HON BLE MR.JUSTICE JAYANT PATEL AND THE HON BLE MRS.JUSTICE S SUJATHA CEA NO.

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1 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19 TH DAY OF FEBRUARY 2016 PRESENT THE HON BLE MR.JUSTICE JAYANT PATEL AND THE HON BLE MRS.JUSTICE S SUJATHA CEA NO.41 OF 2015 BETWEEN: Commissioner of Service-Tax Service Tax Commissionerate-II TTMC/BMTC Building, Domlur, Bangalore (By Sri.Jeevan.J.Neeralgi, Advocate) Appellant AND: Tavant Technologies India Pvt. Ltd., No.12, CSRIE-II, Guava Garden Koramangala Bangalore Respondent This CEA is filed under Sec.35G of the Central Excise Act, arising out of the order dated:19/03/2015

2 2 passed in Final Order No.20797/2015 by the CESTAT, South Zone Bench Bengaluru praying to allow the appeal of the Appellant, decide the substantial questions of law as framed above, set aside the Final Order No /2015 dt: 19/03/2015 passed by the CESTAT, South Zone Bench, Bengaluru in so far as dismissing the appeal of the Department and pass such other order as this Hon ble Court deems fit and proper in the facts and circumstances of the case in the interest of justice and equity. This Appeal coming on for admission this day, JAYANT PATEL J., delivered the following: JUDGMENT 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 unutilised cenvat credit without registration? 2. We have heard Mr.Jeevan Neeralgi, learned Counsel appearing for the appellant-revenue.

3 3 3. We may record that the Tribunal in the impugned order dated 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.

4 4 Name of input service Management Consultancy services Name of export of service Justification for availability of CENVAT credit These services are availed to seeking opinions, technical clarification and understanding of legal provisions etc. It also includes audits, financial consulting services, filing of returns etc. This is essential to export software services. Manpower recruitment agency services/advertisem ent services The appellant procures services of recruitment agency to hire employees to fill up the different open positions in the organization. It is hereby essential in view of the attrition rate that is common to the industry and also to identify the apt candidate for the job. Since the employees are directly related to the services being exported, it is submitted that these services are essential for smooth functioning of export of service.

5 5 Rent-a-cab services The company hires vehicles/cabs to pick up its employees from their residence and drop them back. This essential as the employees have to perform the work at different hours on a shift duty basis. Moreover, the employees are located in different parts of the city and since they are supposed to work in different parts of the city and since they are supposed to work in different time horizons, the productive hours will be lost if they are the public transport facility. So, this service is directly links to the performance of employees which are necessarily required for provision of export of output services. Outdoor catering These services are used for services providing food for employees, during office hours, as the appellant works round the clock; the appellant has provided facility for outdoor catering.

6 6 Security services Business Services agency Support Information Technology Software Services/ Commercial training and coaching services Renting of immovable property services The appellant has availed security services, which is essential in safeguarding the assets of the company. Further, the appellant while providing pick-up and drop facility to its employees needs to communicate the cab details for pick up and drop for employees. Therefore the said services are essential for export of services. These services are availed in order to avail the services of payroll processing, accounting, document storage etc. All these services are essential in order to export. These services are availed to learn the new technology/programming etc, which is essential to export software services. These services are availed to use the premises from where the services are exported, therefore essential for export of services.

7 7 Management, maintenance repair services or Pandal and shamiana services Telecommunication/ internet services These services are availed in order to maintain office equipments like air condition, computers, UPS etc, which are essential to export the services. These services are hired to obtain on rent furniture like chairs, table etc, during the recruitment process. These services are essential to export the software vide internet. Appellant uses the facility of conference calls with its clients, telephone call to its customers aboard to resolve client queries. Etc, which is essential for export of services. House keeping These services are rendered to keep the premises clean and hygiene conditions, which; is essential for export of service.

8 8 4. After reproduction of the various services rendered by the respondent-assessee at para-3, it has been observed as under: 3. 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. 5. 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.

9 9 He therefore submitted that the matter may be considered accordingly. 6. 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-à-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,

10 10 said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside. 7. 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 respondentassessee was not entitled to the refund. 8. 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. 9. The learned Counsel has not been able to show any provision even under Rule 5 of Cenvat Credit Rules,

11 11 which provides for condition precedent for registration of the service provider. 10. 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). 11. Under the circumstances, no substantial questions of law arise for consideration as sought to be canvassed. Hence, the appeal is dismissed. Sd/- JUDGE Sd/- JUDGE JT/-