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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.
Issues Involved:
1. Applicability of Notification No. 1/2006-ST for availing abatement and CENVAT credit. 2. Interpretation of conditions under Notification No. 1/2006-ST regarding non-availment of CENVAT credit. 3. Centralized registration and its effect on availing benefits under Notification No. 1/2006-ST. Detailed Analysis: 1. Applicability of Notification No. 1/2006-ST for availing abatement and CENVAT credit: The appellant provided "Commercial or industrial construction services" and, in some contracts, paid service tax on 100% of the gross value without availing abatement under Notification No. 1/2006-ST, while availing CENVAT credit. In other contracts, they paid duty on 33% of the gross value after availing abatement of 67% as per Notification No. 1/2006-ST and availed CENVAT credit only for these contracts. The department argued that the appellant cannot opt for Notification No. 1/2006-ST for the remaining contracts if they availed CENVAT credit for some contracts and a demand for service tax was raised accordingly. 2. Interpretation of conditions under Notification No. 1/2006-ST regarding non-availment of CENVAT credit: The appellant contended that for the contracts where they availed the exemption under Notification No. 1/2006-ST, no CENVAT credit was availed, thus complying with the notification's conditions. They argued that availing CENVAT credit in some contracts where the exemption was not availed should not affect the benefit of Notification No. 1/2006-ST in other contracts where the condition was met. The department, however, maintained that once CENVAT credit was availed in some contracts, the exemption under Notification No. 1/2006-ST should not be available for any contracts. The tribunal referred to the conditions of Notification No. 1/2006-ST, emphasizing that the exemption does not apply if CENVAT credit is availed on inputs, capital goods, or input services used for providing the taxable service. The tribunal noted that the appellant complied with this condition for the contracts where the exemption was availed. The tribunal cited judgments from Bharat Heavy Electrical Ltd. and Afcons Infrastructure Ltd., which supported the appellant's stance that the benefit of abatement can be availed on a contract-to-contract basis, and there is no stipulation that the option to avail/non-avail CENVAT credit must be exercised uniformly across all contracts. 3. Centralized registration and its effect on availing benefits under Notification No. 1/2006-ST: The tribunal clarified that centralized registration is merely a facility for accounting and filing returns and does not affect the eligibility to avail benefits under Notification No. 1/2006-ST. The tribunal emphasized that the benefit of the notification can be availed by any assessee satisfying the specified terms and conditions, regardless of centralized registration status. Conclusion: The tribunal concluded that the appellant complied with the conditions of Notification No. 1/2006-ST for the contracts where the exemption was availed, and the availing of CENVAT credit in other contracts does not affect this compliance. The tribunal set aside the impugned order and allowed the appeal, referencing the settled issue by previous judgments. The appeal was allowed by way of remand for verification of the appellant's assertion regarding CENVAT credit availed only for projects not covered by Notification No. 1/2006-ST.
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