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2011 (6) TMI 394 - CESTAT, BANGALOREConstructions services provided by the appellant to the SEZ units - Whether would amount to export of service and would hence qualify for the exclusion of rule 6(1) of the Cenvat Credit Rules, 2004 - Revenue contended the same as exempted services - applicability of Notification No. 4/2004-ST, dated 31-3-2004 - Held that:- According to rule 2(e) of Cenvat Credit Rules, 2004, "exempted service" means taxable services which are exempted from the whole of the service tax leviable thereon and includes service on which no service tax is leviable under section 66 of the Finance Act. Exemption contemplated under rule 2(e) of Cenvat Credit Rules, 2004 is not an absolute and unconditional exemption and rule 6(1) does not cover exemptions which are subject to condition and tax is recoverable from the supplier or from the receiver if the conditions are not fulfilled. As in Bajaj Tempo Ltd. v. CCE (1993 (8) TMI 189 - CEGAT, BOMBAY) view was taken that even though Notification No. 217/86, dated 2-4-1986 is an exemption Notification, it cannot be equated with other exemptions and accordingly, it was held that when finished goods were cleared under Notification No. 217/86, it would not lead to application of rule 57C of Central Excise Rules which is similar to the provisions of Cenvat Credit Rules. Further, case of Sterlite Industries (I) Ltd. v. CCE (2004 (12) TMI 108 - CESTAT, MUMBAI) upheld by the Hon'ble High Court of Bombay (2008 (8) TMI 783 - BOMBAY HIGH COURT) - Decided in favor of assessee.
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