2018 (9) TMI 1718 - AT - Service Tax

Works Contract Service - Construction of Residential Complex Service - appellant were paying service tax under Construction of Residential Complex Service from 16.06.2005, however stopped doing so from 01.08.2006 considering the activities to be “Works Contract” based on CBEC circular dt. 1.8.2006. Assessee resumed payment of service tax under works contract w.e.f. 1.6.2007 availing the benefit of reduced liability under Works Contract (compensation scheme for payment of service tax) Rules, 2007 - demand of service tax for different periods under different heads - Composition Scheme - CENVAT Credit.

Period up to 1.6.2007 - Held that:- As the law laid down by the judgment of the Hon’ble Apex Court in the case of L&T Ltd. [2015 (8) TMI 749 - SUPREME COURT], there will not be any service tax liability on the assessee. Appeals of the assessee on this score succeed - demand set aside.

Period from 1.6.2007 to 1.7.2010 - Held that:- The CBEC in Circular dt.10.02.2012 reiterating its earlier circular of 29.01.2009 has clarified that for the period 1.7.2010 such services provided by the builders / developers will not be taxable - services prior to 1.7.2010 also not taxable.

Period w.e.f. 1.7.2010 - composition scheme under the said Rule 3 (3) - Held that:- The adjudicating authority has denied the benefit of the composition scheme only on the preliminary ground that the assessee has not exercised option before “due date of payment of tax” - denial of compensation scheme to the assessee on the said ground is not justified and improper and therefore requires to be set aside - demand set aside.

CENVAT Credit - period 1.6.2005 to 1.7.2010 - Held that:- Appellant had paid service tax - Hon’ble Apex Court in the case of Punjab Tractors Vs CCE Chandigarh [2005 (2) TMI 141 - SUPREME COURT OF INDIA] have held that when duty is paid by the assessee even on exempted goods, modvat credit availed and reversed at the time of clearance of the final product cannot be demanded - credit remains allowed.

Input service credit - duty paying invoices - denial also on the ground that related invoices did not bear invoice number and / or date - Going by the provisions of Rule 9 (2) of CCR 2004, as also plethora of decisions of higher appellate forums on this issue, these discrepancies in the credit availing documents are very much condonable and should be considered as curable defect only - credit allowed.

Appeal allowed in toto.