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2019 (3) TMI 1217 - AT - Service TaxCENVAT credit - input services - denial of the credit on the ground that provider of services should not have paid service tax - Construction of Industrial or Complex service - service tax collected for construction of roads carried out by M/s. Sunmar Constructions - Held that:- It is seen that M/s. Sunmar Constructions have collected service tax from the appellant and issued proper invoices. The appellants have availed credit of the same amount under proper documents. It is now the case of the department that M/s. Sunmar Constructions ought not to have paid service tax on the construction of the roads since such activities are not leviable to service - On an analogous situation, wherein credit was availed on inputs, when the process does not amount to manufacture, the Courts have consistently held that the credit cannot be denied at the receiver’s end. The Hon'ble Apex Court in the case of Commissioner of Central Excise Vs. MDS Switchgear Ltd. [2008 (8) TMI 37 - SUPREME COURT] has held that the MODVAT credit enables the recipient manufacturer to avail the benefit of duty paid by the supplier manufacturer - In the present case, CENVAT scheme enables the service recipient to avail credit of the service tax paid by the service provider. The CENVAT scheme therefore allows the manufacturer or service recipient to avail the credit of duty to the extent that has been paid by the supplier or provider and in the invoices in full unless the same is restricted or barred by some other legal provision in law. The manufacturer or service recipient cannot be denied the credit only on the score that the same has been short-paid or has been paid when not required. Appeal allowed - decided in favor of appellant.
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