TMI Blog2015 (10) TMI 2294X X X X Extracts X X X X X X X X Extracts X X X X ..... t and appellant is guilty of suppression of facts as it did not pay service tax and also did not file any ST-3 return. Held That:- Benefit of Notification No.1/2006-ST granted on final product since reversal of credit on input was done at Tribunals stage – Demand under CICS is untenable as Notification No.25/2007-ST nowhere implies that CICS for construction of public port only is eligible for exemption and private port is not - Appellant received payment for service rendered to joint venture thus contention that services rendered were effect to self is untenable - Allegation of wilful mis-statement or suppression of facts does not remain of much relevance but it is agreed that appellant did not pay service tax and did not file ST-3 returns – Impugned order set aside – Decided in favour of Assessee. - Appeal No.ST/60049/2013-CU[DB] - Final Order No.52285/2015 - Dated:- 28-4-2015 - G. Raghuram, President and Mr. R.K. Singh, Member (Technical) Shri Sujit Ghosh, Advocate, Shri Shashank Shekhar, Advocate for the appellant Shri Govind Dixit, DR for the respondent JUDGEMENT Per Mr. R.K. Singh : Stay application along with appeal is filed against Order-in-Ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Chandrapur Magnet Wires Pvt. Ltd. Vs. CCE, Nagpur [1996 (81) ELT 3 (SC)], the exemption under Notification is subject to the condition of non-availment of CENVAT credit and can be granted only if the CENVAT credit is reversed before the clearance of the goods and CESTAT in the case of Hind Lamps Vs. CCE, Kanpur [2010 (250) ELT 237 (Tri.-Del)] has distinguished the case of Hello Minerals (supra) to hold that CENVAT credit should have been reversed before the due date of payment of service tax. It also cited judgements in the cases of CCE, Thane-I Vs. Nicholas Piramal Ltd. [2009 (244) ELT 321 (Bomb.)] and Sunil Hi-Tech Engineers Vs. CCE, Nagpur [2014 (36) STR 408 (Tri.- Mumb.)] (ii) The joint venture between the appellant and M/s. WOGL, London was a separate legal entity and had a separate service tax registration and therefore the service rendered cannot be said to be service to self. (iii) Construction cannot be said to be in relation to port or other port in as much as the jetty was solely used by a single party namely RGPPL and therefore was a personal property which could not be used by any other party and hence does not qualify to be called port or other port meant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ENVAT credit along with interest before the primary adjudication. Seen in this light the distinguishing effort by CESTAT in the case of Hind lamps (supra) fails to be convincing. The Bombay High Court judgement in the case of Nicholas Piramal (Supra) cited by the ld. Departmental Representative was with regard to the interpretation of Rule 57C and Rule 57CC of Central Excise Rules, 1944 and Rule 6 of CENVAT Credit Rules, 2004 and hence has no direct applicability to the issue at hand. The CESTAT judgement in the case of Sunil Hi-Tech Engineers (supra) cited by ld. Departmental Representative was in relation to service tax liability of main contractor vis-a-vis sub-contractor and hence is not germane to the issue at hand. As regards the other judgement Dilip ChhabriaDesigns [2015-TIOL-851-HC-Mum-CX], cited by Revenue to distinguish the judgement in the case of Hello Minerals (supra), we find that the facts in that case were very different in as much as in that case the assessee did not reverse the credit at the time of removal of goods or after removal . Without dwelling further on the subject, we may only add that as on today the judgement of Allahabad High Court in the case of Hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime being in force. The Indian Ports Act, 1908 extends to the ports mentioned in the 1st schedule as per section 1 thereof. We find that in the said 1st schedule in part X Dabhol is mentioned under the Ratnagiri group of ports. It is also seen that Maharashtra Maritime Board Charter lists Dabhol as one of the 48 minor ports on the coastal line. It is also acknowledged by Maharashtra Maritime Board that in the Maharashtra State amongst several self-controlled jetties, Dabhol port is managed by RGPPL. It is thus obvious that the service rendered in relation to completion of jetty at Dabhol was clearly CICS rendered in relation to construction of other port . We find that the adjudicating authority in the impugned order has denied the benefits of Notification No.25/2007ST essentially on the ground that the jetty is owned and solely used by single party namely RGPPL which cannot be used by any other party and hence cannot be defined as port as it is not meant for use by general public. We find that this observation/reasoning is without any basis. Notification No.25/2007-ST nowhere implies that CICS provided in relation to construction of a public port only is eligible for exemption an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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