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2015 (11) TMI 225 - CESTAT MUMBAI

2015 (11) TMI 225 - CESTAT MUMBAI - 2016 (41) S.T.R. 532 (Tri. - Mumbai) - Commercial and Industrial Construction Services - Benefit of Notification No.1/2006-ST - CENVAT Credit - Held that:- CENVAT credit availed by the appellant of the service tax paid by the service providers for the services rendered prior to 01.03.2006 cannot be faulted with as availment of CENVAT credit by service recipient is subject to the condition that payment for such service rendered as the provisions. Undisputedly, .....

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e. - Appeal No. ST/154/09 - Final Order No. A/2765/2015-WZB/STB - Dated:- 13-8-2015 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) For the Petitioner : Shri S.S. Gupta, C.A. For the Respondent : Shri K.S. Mishra, Addl. Commissioner (AR) ORDER Per: M.V. Ravindran This appeal is directed against Order-in-Original No. P-I/Commr/ST/03/2009 dated 25.03.2009. 2. The relevant facts that arise for consideration are during the period March 2006 to September 2006, the appe .....

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nt contested the show cause notice on merits as well as on limitation. The adjudicating authority did not agree with the contention raised and confirmed the demand along with interest. He refrained from imposing any penalties on the appellant under Section 77 and 78 but imposed penalty under Section 76 of the Finance Act, 1994. 3. Learned C.A. after taking us through various facets of the case would submit that CENVAT credit availed by the appellant from March 2006 were in respect of the service .....

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y them from March 2006 onwards. He would submit that an identical issue was decided by this Tribunal in the case of Santosh Associates 2009 (16) STR 87 (Tri. Ahmd.). Alternatively, it is his submission that the value which has been considered for computation of the tax liability is incorrect as material cost is also included which requires to be reduced and entire CENVAT credit which has been taken by the appellant during the relevant period can be reversed and no demand of tax liability would a .....

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o. 1/2006-ST and submit that the Notification is very clear and CENVAT credit should not have been availed on the input services. It is his submission that CENVAT credit has been availed hence the case law which has been relied by the learned C.A. will not be applicable in this case. He would read para 8.2 of the order-in-original and submit that the appellant on their own submission has accepted that they have taken CENVAT credit of service tax paid by various service providers. He would also .....

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liability. We uphold the tax liability and also hold that the appellant is liable to discharge the interest on the said amount as per law. 6.1 As regards the service tax liability on the amount which has been claimed as abatement we find that the adjudicating authority was incorrect in holding it so for more than one reason. 6.2 Firstly the said Notification 1/2006-ST came into the effect from 01.03.2006. In the case in hand the appellant had taken a plea before the lower authority that the CENV .....

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e service tax paid by the service providers for the services rendered prior to 01.03.2006 cannot be faulted with as availment of CENVAT credit by service recipient is subject to the condition that payment for such service rendered as the provisions. Undisputedly, in this case the appellant had paid the service providers / settled the service providers bill subsequently from March 2006 for the service rendered prior to 01.03.2006 and has correctly claimed the legitimate CENVAT credit available. .....

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dering the services was completed during the period prior to 01-3-2006. For this period appellant was entitled to abatement as well as Cenvat credit and for the subsequent period in respect of services rendered, the appellant was not entitled to abatement as well as Cenvat credit. As pointed out by the Ld. Consultant, the argument is supported by the instructions issued of the Board at the time of introduction of services for commercial training, wherein a view was taken that in respect of servi .....

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lments are only obligation of hirer and rate of services will be the rate prevailing on the date on which contract is entered into. In this case also, following the same analogy, appellants are eligible for the benefit of Notification No. 18/2005 for the period prior to 1-3-2006. Appeal is allowed with consequential benefit to appellants. 6.4 The submissions made by learned D.R. as to the applicability of sub-Rule (7) of Rule 4 of CENVAT Credit Rules, 2006 and the 2nd proviso thereto will not ca .....

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