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M/s Archivista Engineering Projects Pvt Ltd Versus Commissioner of Central Excise, Pune-III

2015 (7) TMI 466 - CESTAT MUMBAI

Construction Service - Notification No. 1/2006-ST dated 01.03.2006 - Denial of CENVAT Credit - Held that:- Appellant have rightly taken credit for the input services received and availed admittedly prior to 01.03.2006 although credit for the same have been taken on 01.04.2006, subsequent to coming into force of Notification No.1/06, following the ruling of the Hon'ble High Court of Bombay in the case of Tata Engineering & Locomotive Company Ltd. (2003 (1) TMI 124 - HIGH COURT OF JUDICATURE AT BO .....

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d:- 9-4-2015 - Anil Choudhary, Member (J),J. For the Appellant : Shri Bharat Raichandani, Adv. For the Respondent : Shri B K Iyer, Supdt (AR) ORDER Per: Anil Choudhary: The appellant company is engaged in the business of civil construction and is registered with the Service Tax Department under the category of "Construction Service". By the impugned Order-in-Appeal the CENVAT credit on input services availed by the appellant during the period 01.04.2006 to 30.09.2006 have been disallow .....

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the period 01.04.2004 to 30.09.2006, it was seen that the appellant was availing abatement under Notification No. 15/2004, wherein the appellant had been availing exemption granted of 67% of the value of taxable service provided on the condition that for availing the abatement, no CENVAT credit paid on inputs or capital goods shall be availed by the service provider during the period. The said condition was modified by Notification No. 1/2006-ST dated 01.03.2006 wherein it was provided that in r .....

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was issued on the appellant alleging that the appellant could have availed credit of CENVAT for service tax paid on inputs services availed during the period prior to 01.04.2006 but they chose not to do. The ST-3 returns submitted show that no credit was availed during the prior period when it was received. Instead the appellant have availed the credit on 01.04.2006 that is one month after the Notification dated 1.3.06. According to Revenue, once the notification is rescinded, there can be no le .....

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Act. 3. The appellant contested the show-cause notice by filing reply. The ground taken by the appellant was that Rule 3 of the CENVAT Credit Rules, 2004 allow the clamant to avail credit pertaining to service tax paid on input service received on or after 10.09.2004. However Rule 4(7) providing that, the actual utilization of such credit shall be allowed on or after the day on which payment is made of the value of input service and the service tax to the service provider. It was further contend .....

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on 78 of the Finance Act read with Rule 15 for of the CENVAT Credit Rules, 2004. The appellant preferred appeal before the Commissioner (Appeals) who vide the impugned order was pleased to confirm the Order-in-Original and rejected the appeal. 4. Being aggrieved the appellant is in appeal before this Tribunal on the ground, among others, that the Commissioner (Appeals) have erred in holding that the appellant will not be entitled to take credit for the services received, admittedly, prior to 1.3 .....

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cordingly on 01.04.2006, which cannot be denied. It is further urged that the purpose of Notification No. 1/06 is that CENVAT Credit on inputs and input services shall not be availed on services received on or after 01.03.2006. Thus, the interpretation made by the Revenue is incorrect. It is further urged that the appeal is fit to be allowed. The appellant further relies on the CBEC Circular No. 137/72/2008-CX dated 21.11.2008, which provides, with respect to the amendment made in the Rules 6 su .....

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edit by the taxpayer after 01.04.2008. Further, it must be borne in mind that taking of credit and its utilisation is a substantive right of taxpayer under the value-added taxation scheme. Therefore, in the absence of a clear legal prohibition, this credit cannot be denied. 5. The learned Counsel, Shri Bharat Raichandani, also relies on the ruling of the hon'ble Bombay High Court in the case of Tata Engineering and Locomotive Company Ltd. vs. Union of India, 2003 (159) ELT 129 (Bombay), wher .....

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vernment introduced MODVAT scheme replacing the earlier scheme under Notification No. 1/79, wherein assessee was permitted to take set off of duty paid on specified inputs when used in or in relation to specified final products while paying duty on specified final products. In the list of items, vide Notification No. 177/86, coolants was not provided. Accordingly, the unutilised credit lying in the books of the assessee was disallowed to be taken as the brought forward in view of the subsequent .....

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under the Central Excise Act, 1944 to frame Rules so as to declare such accumulated credit as lapsed. Therefore, the vested right of assessee in respect of unutilised credits on or before 28.2.86 could not be said to have been lapsed, as there was neither specific provision to that effect nor a statutory provision under the Central Excise Act to declare such credit as lapsed. It was further observed, if the Central Government wanted that the unutilised credits on coolants as on 01.03.1986 shoul .....

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