TMI Blog2018 (5) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Revenue has not contradicted the factual findings, the impugned order is correct and legal and does not suffer from any infirmity - appeal dismissed - decided against Revenue. - ST/237/2009-DB - Final Order No. A/ 30332/2018 - Dated:- 23-2-2018 - Mr. M.V.Ravindran, Member (Judicial) and Mr. C. J. Mathew, Member (Technical) Mr Bhagat Depeak, A.R. for the Appellant. None for the Respondent ORDER [Order per: M.V.RAVINDRAN] This appeal is directed against order-in-original No. 18/2008-09(RS) dated 31/12/2008. 2. None appeared on behalf of the respondent despite notice. Since the issue involved in this case is in a narrow compass, we take up the appeal for disposal. 3. Heard learned A.R. and perused the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iated by the show-cause notice. Aggrieved by such order, Revenue is in appeal before the Tribunal. 7. Learned A.R. reiterated the grounds of appeal which are summarised herein below: The Order-in-Original is examined. It appears that the Order-in-Original is not legal and proper for the following reasons: 1. The issue for decision is whether an assessee can avail of exemption under Notification No. 1/2006-S.T. as well as avail of credit of duty/ Service Tax on inputs/ input services simultaneously, albeit for different contracts. 2. The Commissioner has held that the service has to be construed recipient wise, based on the conditions of the Contract in each case. The same recipient could enter into different contracts with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-clause of clause (105) of Section 65 Description of taxable servic e Conditions Percentage (1) (2) (3) (4) (5) 7. (zzq) Commercial or industrial construction service. This exemption shall not apply in such cases where the taxable services provided are only completion and finishing services in relation to building or civil structure, referred to in sub-clause (c) of clause (25b) of section 65 of the Finance Act. Explanation. - The gross amount charged shall include the value of goods and materials supplied or provided or used by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, it appears that the Order in Original No. 18/2008-09 (RS)dated 31.12.08 passed by the Commissioner of Central Excise, Customs Service Tax, Visakhapatnam I Commissionerate, is not legal and proper. 8. The above grounds of appeal are the only grounds of appeal after reproducing the entire Notification in the grounds of appeal. 9. It can be seen from the above reproduced grounds of appeal, that the Revenue has not effectively contradicted the factual findings of the adjudicating authority who had appreciated the entire case records and held that the proceedings initiated by the show-cause notice needs to be dropped. We concur with such factual findings of the adjudicating authority which are reproduced:- 13. In terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omer basis. The bar as per the notification is the service provider is prevented from taking cenvat credit on inputs, input services and capital goods in respect of such service. I am of the view that the service has to be construed recipient wise, based on the conditions of the Contract in each case. The same recipient could enter into different contracts with the same service provider with different conditions. In other words, there is no explicit bar/prohibition for the manufacturer to selectively opt for the Notification, of course, subject to the fulfilment of the conditions stipulated therein, based on the conditions of each contract. Thus, if the contracts are executed providing the service, in some cases, availing abatement and in o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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