TMI Blog2017 (11) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Commissioner (Appeals) has wrongly applied the amended input service definition which came into force from 01.04.2011 which is probably wrong. Also, the subsequent demand at Hosakote factory is barred by principles of constructive res judicata as it amounts to double demand for the same service and it is not permitted under law. Credit allowed - appeal allowed - decided in favor of appellant. - E/20661/2015-SM, E/22949/2014-SM - 22763-22764/2017 - Dated:- 20-7-2017 - Shri S. S. Garg, Judicial Member Shri M.V. Sridhar, Consultant For the Appellant Shri Pakshirajan, Assistant Commissioner (AR) For the Respondent ORDER Per: S. S. Garg Appellants have filed these two appeals against the two impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take the said credit, as the input service was not used in or in relation to manufacture of the final product in the factory premises and that the service rendered was for construction of building at Hosakote. Further their Head office was not registered as Input Service Distributor for distribution of the input service credit. On pointing out by the Audit party, the appellants reversed the irregular cenvat credit of ₹ 20,14,410/- (Rupees Twenty Lakhs Fourteen Thousand Four Hundred and Ten only) on 21.03.2011. However, the interest applicable on wrongly availed cenvat credit was not paid by them. It appeared that the appellant had wrongly availed cenvat credit of service tax paid on construction service to the extent of ₹ 20,14, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs from serious legal infirmity of being void ab initio. 3. Heard both the parties and perused the records. 4. Learned counsel for the appellant submitted that the impugned orders passed in both the cases are not sustainable in law. He further submitted that the impugned order is only misconceived and not legally tenable. The findings are contrary to the facts of record and binding judicial precedent of the Courts and Tribunals. He also submitted that the appellate authority has been wrongly influenced by the subsequent amendment to the Cenvat Credit Rules 2004. He further submitted that the lower appellate authority has not ascertained the facts and also not read the show-cause notice at all while passing the impugned order. He furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrong address in the service tax invoice is a curable defect covered under Rule 9(2) of the Cenvat Credit Rules 2004. Since the service was provided to Hosakote factory and the contractor has corrected the service recipient's address in the invoices under his seal and signature, it is a valid document for taking credits on the construction service. He also submitted that both the authorities have failed to appreciate that prior to omission of Rule 6(5) of the Cenvat Credit Rules, 2004 w.e.f. 01.04.2011, the manufacturers were allowed to take full credit on seventeen notified taxable services without any restriction so long as they are not used exclusively for providing exempt services or manufacture of exempted products. Construction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruction service fall in the definition of input service under Rule 2(l) under the phrase setting up of a factory and the Commissioner (Appeals) has wrongly applied the amended input service definition which came into force from 01.04.2011 which is probably wrong. Further I also find that during the relevant time Construction of Commercial and Industrial Construction Service was among the seventeenth taxable services listed under Rule 6(5) for which manufacturers were allowed to take full credit and therefore even under Rule 6(5) before it was omitted w.e.f. 01.04.2011, the manufacturer was entitled to take the full credit. Further I also find that the contractor corrected the invoice subsequently and on the correct invoice, the service reci ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
