TMI Blog2014 (9) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... y is quite naive and cannot be accepted. If the adjudicating authority had any doubt about when the contract was entered into and the works executed, he could have asked the appellant to produce the copies of all the contracts which the appellant, in fact, claims that they have produced before the department. Therefore, this cannot be a ground for demanding service tax without any basis when the liability has in fact been discharged by the appellant. As regards the denial of cenvat credit of ₹ 168.82 crores, from the records it is seen that the appellant has availed only an amount of ₹ 134.26 crores during the impugned period. If that be so, we do not understand how a disallowance of a credit not availed can be made by the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g authority has confirmed a service tax demand of ₹ 134.97 crores, denied cenvat credit availment of ₹ 168.82 crores, ordered for recovery of ₹ 90,78 crores utilized by the appellant from the cenvat credit account and appropriated an amount of ₹ 47.63 crores paid by the appellant towards ineligible credit availed. He has also confirmed demands of interest on the above amounts apart from imposing equivalent amounts of penalties. Aggrieved of the same, the appellant is before us. 3. The learned counsel for the appellant submits that the demand for service tax liability of ₹ 134.97 crores, denied cenvat credit availment of ₹ 168.82 crores, ordered for recovery of ₹ 90.78 crores utilized by the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification 1/2006-ST on the ground that the appellant has availed cenvat credit on the capital goods and the demand works out to ₹ 39.09 crores. It is the contention of the appellant that since the cenvat credit taken has been reversed by the appellant, that would amount to non-availment of credit and the appellant relies on the decision of the Hon'ble High Court of Allahabad in the case of Hello Minerals Water Pvt. Ltd. vs. UOI reported in 2004 (174) ELT 422 (All.), the Tribunal's decisions in the case of B.G. Shirke Construction Tech. P. Ltd. vs. CCE, Pune - III reported in 2009 (13) STR 686, Khyati Trours Travels vs. CCE, Ahmedabad reported in 2011 (24) STR 456 and B.G. Shirke Technology P. Ltd. vs. CCE, Pune - III rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, the adjudicating authority has not considered any of these documentary evidences available on record and has mechanically confirmed the demands. Therefore, it is prayed that stay be granted and the matter remanded back to the adjudicating authority for fresh consideration. 4. The learned special consultant appearing for the Revenue reiterated the findings of the adjudicating authority. However, he fairly conceded that there cannot be double demands inasmuch as the credit availed is denied and the credit utilized which is already included in the credit availed, is once again confirmed. However, it is the submission that had the appellant produced all the requisite evidences before the adjudicating authority, such confirmation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility of ₹ 95.88 crores has been confirmed, the appellant has discharged the service tax liability under the works contract scheme. As regards the balance of ₹ 39.09 crores confirmed by the adjudicating authority, the appellant has reversed the credit taken on the inputs and input services and consequently the appellant would be entitled for the benefit of abatement under Notification 1/2006-ST. In a number of decisions, namely Hello Minerals Water (P) Ltd., B.G. Shirke Technology P. Ltd. and Khyati Tours Travels cited supra, it has been consistently held by this Tribunal as also by the Hon'ble Allahabad High Court that reversal of cenvat credit amounts to non-availment of credit and, therefore, the benefit of Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the adjudicating authority for fresh consideration. Accordingly we remand the matter back to the adjudicating authority. The appellant is directed to submit copies of all the contracts, the details of the cenvat credit availed and the details of cenvat credit reversed by them so that the adjudicating authority can satisfy as to the correctness of the availment or the reversal. We also make it clear that if the appellant has reversed the cenvat credit taken, the benefit of Notification 1/2006-ST providing for abatement in the taxable value of service rendered cannot be denied to the appellant. 9. Thus the appeal is allowed by way of remand. The stay petition is also disposed of. (Operative part pronounced in Court) - - TaxTMI - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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