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TMI Blog2018 (8) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... tion No. 1/2006-ST, for remaining contract, accordingly, denying the exemption Notification No. 1/2006-ST demand of service tax was raised. 2. Sh. Vinay Kansara Ld. Counsel appearing on behalf of the appellant at the outset submits that the issue is squarely covered by following judgments: * Bharat Heavy Electrical Ltd Vs. CCE-2014 (34) STR 430 (T-Mumbai) * Afcons Infrastructure Ltd. Vs. CCE-2016-TIOL-1818- CESTAT-MUM * Shriram Properties Ltd. Vs. CCE- 2007 (7) STR 3 (Kar.) 3. He further submits that the service contract in respect of which the appellant availed exemption Notification No. 1/2006-ST, no cenvat credit was availed. Therefore, the condition of the Notification was scrupulously complied with, merely because the cenvat credit was availed in respect of some contracts on which the exemption Notification No. 1/2006-ST was not availed and cenvat credit was availed, the benefit of Notification No. 1/2006- ST in some of the contract where the condition of Notification was complied with would not be affected. 4. Sh. Amit Mishra Ld. Deputy Commissioner (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. He submits that the exemption is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NVAT credit of service tax on input services, used for providing such taxable service, has been taken under the provisions of the CENVAT Credit Rules, 2004; or (ii) the service provider has availed the benefit under the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 12/2003-Service Tax, dated the 20th June, 2003 [G.S.R. 503 (E), dated the 20th June, 2003]. From the above Notification, it is clear that the service of commercial or industrial construction is exempted subject to condition given in second proviso of Notification particularly Clause (i). On plain reading of the said provision it is clear that the Notification is not applicable in case where the cenvat credit in respect of inputs or capital goods or input services used for providing such taxable service has been taken. In the present case the appellant in respect of the service on which Notification No. 1/2006-ST availed, admittedly not availed cenvat credit in respect of input or capital goods or input services used in providing such taxable services. Therefore, the condition of the Notification was complied with, merely in some of the contract the appellant had availe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cified in the corresponding entry in column (5) of the said Table, of the gross amount charged by such service provider for providing the said taxable service, subject to the relevant conditions specified in the corresponding entry in column (4) of the Table aforesaid : S. No. Sub-clause of clause (105) of Section 65 Description of taxable service Conditions Percentage 1 . .. 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 the provider of the construction service for providing such service. 33 8. .... .... ... ... Provided that this notification shall not apply in cases where, - (i) the CENVAT credit of duty on inputs or capital goods or the CENVAT credit of service tax on input services, used for providing such taxable service, has been taken under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t refer to or stipulate any such conditions. Therefore, the benefit of these notifications can be availed by any assessee so long as he satisfies the terms .and conditions specified therein, irrespective of the fact whether he is centrally registered or not. Centralised registration is only a facility for accounting purposes and filing of the returns and the same has nothing to do with the availment of benefit under an exemption notification. 4.4 The next issue for consideration is in a case/contract where abatement benefit is availed under Notification 15/2004 or 1/2006, without taking CENVAT credit on inputs or capital goods or input service and service tax liability is discharged on the reduced value, whether for the purpose of discharge of service tax liability, accumulated CENVAT credit arising from some other case/contract can be utilised or not. In our view, there is no such bar or restriction/prescribed in the notification. The notification only stipulates that in respect of a case/contract, where abatement is availed, no CENVAT credit on inputs, capital goods or input services shall be taken. So long as this condition is satisfied, abatement is permissible. Discharge of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act. There is nothing in these notifications which prevents an assessee from not availing CENVAT credit and paying service tax on 100% of the contract value in respect of one particular contract and availing abatement and not availing CENVAT credit in respect of another contract. In other words, there is no stipulation in the notification that the option to avail/non-avail CENVAT credit has to be exercised uniformly in respect of all the contracts executed by the assessee. It is for the assessee to choose which formulation he wants to follow in a given contracts." In view of the above, it is clear that the appellants can avail Notification No. 1/2006-ST, so long as in respect of such projects, no CENVAT credit is availed. The appellants are free t avail CENVAT credit in respect of projects on which Notification No. 1/2006-ST has not been availed. However, the assertion of the appellant that the credit was availed only in respect of project on which Notification No. 1/2006-ST has not availed, needs verification. In view of the above, the impugned order is set aside and the above findings. The appeal is allowed by way of remand." 7. In view of the above judgement and over discussi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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