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2019 (3) TMI 817 - AT - Service TaxErection, commissioning and installation services - benefit of abatement - simultaneous availing cenvat credit - under Sl. No.5 of N/N. 1/2006-ST dated 01.03.2006 - Held that:- There is a detailed calculation table based whereupon the demand was proposed and subsequently confirmed. Such a calculation is not possible in the absence of the evidence. Further, the documents as that of giving details bifurcating the amount received by the appellant with respect to both kind of services (with and without material) are on record. A perusal thereof shows that the value mentioned for the services with material tallies with the value mentioned in the show cause notice. The said perusal is sufficient enough to hold that the services, which do not include the value of material and on which, the cenvat credit has been availed were not included by the appellant while availing the abatement under the said Notification. The details about cenvat credit on input services have also been brought to the notice of this Bench. There is no denial on part of Department that the appellants were rendering services of erection, commissioning and installation and there have been the work orders, which include the value of material as well as the labour. CENVAT Credit - Held that:- The adjudicating authority has simply relied upon the ST-3 Return for holding that since cenvat credit has been availed one condition for abatement stands not complied with, while denying the benefit of the Notification. But it is the simultaneous acknowledgement that the format of ST-3 Return is very restrictive and there is no scope of bifurcation. Hence, merely relying upon ST-3 Return for holding the non-compliance of the condition, to my opinion was not justified on the part of the adjudicating authority. Specially when there was enormous evidence giving bifurcation for both kind of services (eligible and not eligible for the abatement benefit under the impugned Notification) - the lack of evidence as has been held a ground for rejecting the appeal is not based on the true facts of the case and is rather against the record. Time limitation - Held that:- It is observed that apparently there had been two prior audits of the appellant’s record. First being in the year 2009, admittedly the appellant had regularly been filing the returns. No suppression or mis-representation of facts can be attributed to the appellant in the given circumstances. The Department was not entitled to invoke the extended period of limitation. Major portion of demand is, therefore, stands hit by principle of limitation - Appeal allowed - decided in favor of appellant.
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