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2016 (5) TMI 1076 - CESTAT NEW DELHI

2016 (5) TMI 1076 - CESTAT NEW DELHI - TMI - Valuation of taxable services where the benefit of abatement claimed - inclusion of value of the free supplies provided by the service recipient in the assessable value of the taxable service - claim of abatement of 67% in terms of Notification No. 18/2005-ST/ 1/2006-ST - cenvat credit on capital goods availed - benefit of Composition Scheme under works contract service on-going from prior to 01.06.2007. - Held that:- switch over to Composition Scheme .....

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partly in favor of assessee. - Service Tax Appeal No.ST/53677/2014-ST [DB] - Dated:- 6-5-2016 - MR. S.K. MOHANTY, MEMBER (JUDICIAL) AND MR. R.K. SINGH, MEMBER (TECHNICAL) For the Appellant : Shri.Sumit Wadhva, Advocate And Shri Mukul Chandra, Advocate For the Respondent : Shri Satyaveer Singh, Chief Commr.(A.R.) and Shri Rajeev Gupta, Commr. (A.R.) ORDER PER R.K. SINGH Appeal has been filed against Order-in-Original DEL-SVTAX-ADJ-COM-041-13-14 dated 31st March, 2014 in terms of which service ta .....

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the benefit of the said Notifications. (iii) It availed of the benefit of Composition Scheme under works contract service w.e.f. 01.06.2007 which was not permitted as the projects for which the said scheme was availed of were on-going from prior to 01.06.2007. 2. The Ld. Advocate for the appellant contended that: (i) No credit of capital goods has been taken by the appellant in respect of the projects in respect of which the impugned demand has been confirmed. (ii) CESTAT in the case of Bhayana .....

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. (iv) The extended period in this case is not invokable as there is no willful misstatement or suppression of facts and there was an earlier show cause notice issued invoking extended period covering the period June, 2005 to September, 2006 and therefore, extended period cannot be invoked in subsequent show cause notice covering subsequent period. 3. Ld. D.R., on the other hand, reiterated the findings of the adjudicating authority particularly on page 172 of the appeal paper-book where the Com .....

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alue of free supplies of goods made by the service recipient need not be included. It is however true that the benefit of the said Notification is not available in case the cenvat credit on capital goods has been taken. We find that the appellant asserted during the adjudication proceedings that it had not taken any cenvat credit on capital goods in respect of the projects for which the impugned demand has been confirmed. The Commissioner in the Adjudication order (Page 172 of the Appeal Papers) .....

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taken in respect of such capital goods, the benefit of abatement cannot be disallowed in respect of the projects for which the said capital goods were not used merely because those capital goods could be used for these projects also. We do not find even a prima facie evidence in the show cause notice or in the adjudication order to the effect that any cenvat credit was indeed taken in respect of capital goods used for the projects to which the impugned demand pertains on account of denial of 67 .....

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) in respect of projects which were on going from prior to 01.06.2007. It has in effect been held by Supreme Court in the case of Nagarjun Construction Co. Ltd. vs. Govt. of India - 2012 (28) STR 561 (S.C.) that switch over to Composition Scheme w.e.f. 01.06.2007 is not permitted in respect of projects on going from before 01.06.2007. Further elaborate discussion on this point is not needed because the appellant has fairly conceded this point adding that on this account, the differential duty wo .....

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