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2015 (7) TMI 466 - CESTAT MUMBAI

2015 (7) TMI 466 - CESTAT MUMBAI - 2016 (41) S.T.R. 198 (Tri. - 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 & .....

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Appeal No. ST/88218/14-MUM - Final Order No. A/1519/2015-WZB (SMB) - Dated:- 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 t .....

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cause notice are that in the course of audit conducted by the Revenue for 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 Not .....

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e in Annexure A, to show-cause notice. Show-cause notice dated 28.12.2010 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. Ac .....

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le 15(4) of CENVAT Credit Rules, 2004 read with Section 78 of the Finance 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 s .....

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urther imposing penalty of equal amount of ₹ 11,06,479/- under Section 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 e .....

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taken on or after the date of payment, the appellant have taken credit accordingly 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. .....

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edit, the Department should not deny the utilisation of such a covenant credit 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 Loc .....

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items including oil coolants. With effect from 01.03.1986, the Central Government 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 wa .....

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on of India 1999 (106) ELT 3 (SC), it was held that there was no provision 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 Govern .....

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