TMI Blog2019 (9) TMI 1366X X X X Extracts X X X X X X X X Extracts X X X X ..... urned or paid back in January, 2005 even the earlier modvat credit it had taken and utilised - This decision fully covers the instant case and on respectful application thereof it is conclusive that the impugned order of the Commissioner is legal, valid and proper and that the instant appeal of the Revenue is without any merit or substance. The other contention of the Revenue that BHEL could not furnish relevant records and particulars is also incorrect. The impugned order of the Commissioner and the findings contained therein clearly shows that the relevant records and particulars were before the Commissioner, which is perused and scrutinised to arrive at findings against each project as stated in the show cause notice. No material has also been disclosed by the Revenue in support of this contention. As such, this contention is unsustainable. Appeal dismissed - decided against Revenue. - Service Tax Appeal No.320 of 2011 - FINAL ORDER NO.77064/2019 - Dated:- 24-9-2019 - HON BLE MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) AND HON BLE MR.C. J. MATHEWS, MEMBER (TECHNICAL) Shri S.S. Chattopadhyay, Authorized Representative for the Appellant Dr. Samir Chakraborty, Sr. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication, the show cause notice alleged that the assessee had availed credit on input services related to the projects to which they were not eligible to, as a condition for availing abatement under the said Notification and hence demand was made disallowing 67% abatement availed during the said period on ICS services relatable to the projects where the abatement had been availed. 3. It is however the contention of BHEL that in respect of ICS it had availed abatement in terms of the said Notification in respect of services rendered in (i) Bakreswar- 4 5, (ii) Santaldih 5, (iii) Korba (East) upto October, 2007 and (iv) Mejia 5 6 upto March 2006 projects. In respect of the services rendered in the three other projects, being Korba (East), Mejia 5 6 and Chandrapura 8 BHEL paid service tax on the full gross value of the services from November 2007, April 2006 and March 01, 2006 respectively and no benefit under the said Notification was availed and consequently the question of availing wrongfully benefit under the said Notification and/or there being short payment of any service tax payable in respect of ICS in case of these projects did not arise. The demand of tax has been m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nput services segregating those used for ICS on which the service tax was paid on 33% of the gross value. 7. On behalf of the respondent BHEL it is contended that there can be no dispute with the principles laid down by the Apex Court in the Constitutional Bench decision of Commissioner of Customs Vs. Dilip Kumar Company (supra) that burden of proof entitlement under exemption notification is on the assessee claiming such exemption and if there is any ambiguity in the exemption notification benefit of such ambiguity cannot be claimed by the assessee and it must be interpreted in favour of the Revenue. However, this principle and consequently the relied upon decisions of the Apex Court and the Tribunal by the Revenue have no manner of application whatsoever to the instant case. The issue involved is also clearly distinguishable. There is no ambiguity in the said Notification. In the instant case the Commissioner had, on a detailed analysis of each of the cases alleged in the show cause notice, came to specific conclusions that wherever abatement under the said Notification had been availed by the assessee, the requirement of the said Notification stood duly satisfied. From the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the notification in order to become eligible to get the benefit of the exemption thereunder. Dealing with this issue the Hon ble Supreme Court observed and held as under:-. 3. We note that five-Member Bench of the Tribunal in the case of Franco Italian Co. Pvt. Ltd. Vs. Commissioner [2000 (120) ELT 792 (T-LB)] had taken the view that even if the MODVAT credit was utilised but, thereafter, refunded, it would amount to not utilising the said MODVAT credit. Same view has been taken by the High Court of Allahabad in Hello Minerals Water (P) Ltd. Vs. Union of India [2004 (174) ELT 422 (All)]. 4. On a specific query put by the Court, we were informed that as far as the aforesaid two judgments are concerned, they were accepted by the Department and no appeal was filed there against. In the impugned judgment, the Tribunal has decided the issue in favour of the assessee relying upon the aforesaid two decisions. 5. We, thus, do not find any reason to interfere with this order. The appeal is dismissed accordingly. 8.2 Similarly, in Commissioner of Central GST CX Vs. Himmat Glazed Tiles (supra), the Division Bench of the Gujarat High Court held as under: 2. Br ..... X X X X Extracts X X X X X X X X Extracts X X X X
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