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2023 (12) TMI 783 - CESTAT ALLAHABADShort payment of service tax - Commercial or Industrial Construction Services - mis-classification of services as Work Contract Services - benefit of the Work Contract (Composition Scheme for Payment of Service Tax) Rules, 2007 - availment of CENVAT Credit - benefit of N/N. 1/2006-ST dated 01.03.2006 denied - HELD THAT:- Reliance placed upon the decision of Delhi Bench in case of MEHTA PLAST CORPORATION VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR [2014 (5) TMI 1131 - CESTAT NEW DELHI] where it was held that I find that the payment of service tax @ 4.12% itself shows that they have opted composition scheme for all the contracts. Further the noticees have not paid any service tax in respect of any contract in any other services. The entire payment after calculation of service tax @ 4.12% has been made under composition scheme of Works Contract Services. In view of above, I allow the benefit of composition scheme as the noticees fulfil the condition as mentioned in the notification No. 32/2007-S.T., dated 22-5-2007. Reliance also placed in HARSH CONSTRUCTIONS PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NASHIK [2019 (3) TMI 1679 - CESTAT MUMBAI] where it was held that though the appellant had availed the cenvat credit of service tax paid on the input services, but the same was reversed and the reversal particulars were duly reflected in the period ST-3 returns. Hence, we are of the considered view that the adjudged demands confirmed on the appellant cannot be sustained. Further impugned order also concludes that respondent has not received any consideration from his clients in respect of the two debit notes dated 31.03.2012 and 31.03.2013 against which this demand, but has included the value of these services in his ST-3 return as per the Point of Taxation Rules, 2011 and has paid service tax on these services provided. This finding recorded in the impugned order has not been challenged. Further for the debit note dated 31.03.2011, it is observed that this debit note is for the period prior to introduction of the POT, 2011 and the service tax was to be paid only on realization of the service consideration. Commissioner (Appeal) has in the impugned order consideration of the bank statements and the ledgers of the respondent have concluded that the respondent have not received the service consideration. There are no merits in the appeal filed by the revenue - appeal dismissed.
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