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2018 (8) TMI 179 - AT - Service TaxCenvat credit while availing benefit of abatement - Benefit of N/N. 1/2006-ST dated 01.03.2006 - Commercial or industrial construction services - The case of the department is that since the appellant in respect of some the contracts availed cenvat credit and discharged the service tax on 100% gross value of the service, they cannot opt for N/N. 1/2006-ST, for remaining contract. Held that:- From the Notification, it is clear that the service of commercial or industrial construction is exempted subject to condition given in second proviso of Notification particularly Clause (i) - On plain reading of the said provision it is clear that the Notification is not applicable in case where the cenvat credit in respect of inputs or capital goods or input services used for providing such taxable service has been taken. In the present case the appellant in respect of the service on which N/N. 1/2006-ST availed, admittedly not availed cenvat credit in respect of input or capital goods or input services used in providing such taxable services. Therefore, the condition of the Notification was complied with, merely in some of the contract the appellant had availed the cenvat credit, and the same has no effect on the service where the exemption Notification No. 1/2006-ST was availed. The issue has been dealt in the case of Bharat Heavy Electrical Ltd Vs. CCE [2012 (4) TMI 197 - CESTAT, MUMBAI], where it was held that There is no stipulation in the notification that the option to avail/non-avail CENVAT credit has to be exercised uniformly in respect of all the contracts executed by the assessee. It is for the assessee to choose which formulation he wants to follow in a given contract. Benefit of notification cannot be denied - appeal allowed - decided in favor of appellant.
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