TMI Blog2018 (8) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... tification was complied with, merely in some of the contract the appellant had availed the cenvat credit, and the same has no effect on the service where the exemption Notification No. 1/2006-ST was availed. The issue has been dealt in the case of Bharat Heavy Electrical Ltd Vs. CCE [2012 (4) TMI 197 - CESTAT, MUMBAI], where it was held that 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 contract. Benefit of notification cannot be denied - appeal allowed - decided in favor of appellant. - Appeal No.ST/118/2009-DB - Final Order No. A / 11599 /2018 - Dated:- 1-8-2018 - HON BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) HON BLE MR. RAJU, MEMBER (TECHNICAL) For Appellant : Shri Vinay Kansara ( Advocate ) For Respondent : Shri A. Mishra ( AR ) ORDER Per : Ramesh Nair The brief facts of the case are that appellant are engaged in providing the service of Commercial or industrial construction services . Out of total contracts, in some contracts they pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed services - Percentage of abatements In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the Finance Act), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable service of the description specified in column (3) of the Table below and specified in the relevant sub-clauses of clause (105) of section 65 of the Finance Act, specified in the corresponding entry in column (2) of the said Table, from so much of the service tax leviablethereon under section 66 of the said Finance Act, as is in excess of the service tax calculated on a value which is equivalent to a percentage specified 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 : Table No. Sub-clause of clause (105) of Section 65 Description of taxable service Conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing order: 4.1 The issue involved in this case relates to interpretation of Notification No. 15/2004-S.T., dated 10-9-2004 and Notification No. 1/2006, dated 1-5-2006. These Notifications are reproduced below : Notification No. 15/2004-Service Tax In exercise of the powers conferred by sub-section (1) of Section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable service provided by a commercial concern to any person, in relation to construction service, from so much of the service tax leviable thereon under Section 66 of the said Act, as is in excess of the service tax calculated on a value which is equivalent to thirty-three per cent of the gross amount charged from any person by such commercial concern for providing the said taxable service : Provided that this exemption shall not apply in such cases where - (i) the credit of duty paid on inputs or capital goods has been taken under the provisions of the Cenvat Credit Rules, 2004; or (ii) the commercial concern has availed the benefit under the notification of the Government of India, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xable 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]. Explanation. - For the purposes of this notification, the expression food means a substantial and satisfying meal and the expression catering service shall be construed accordingly. 4.2 A plain reading of the Notifications clearly shows that the condition relating to non-availment of CENVAT credit on inputs/input services applies to case where CENVAT credit is taken either on the input or input service , then the abatement under the aforesaid Notifications would not be available. In a case where the CENVAT credit on input/input service is not taken then the benefit of abatement would be available. The Notification uses the expression in cases where . In other words, the Notification does not stipulate that in all cases, the condition of non-availment of CENVAT credit should be satisfied uniformly without exception. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfied, abatement is permissible. Discharge of service tax liability on the non-abated portion of value is a totally different matter. Hence there is no bar/restriction in discharging service tax liability through accumulated CENVAT credit so long as no CENVAT credit is taken on the inputs/capital goods or input services used in the rendering of the service in the given case or contract and we hold accordingly. 4.5 In the light of the above, the interpretation of law taken by the lower adjudicating authorities are not correct in law and, therefore, the demands on the basis of such a wrong interpretation of the notification have to be set aside. Accordingly, we set aside the impugned orders and remand the matter back to the adjudicating authority for consideration afresh and re-computation of the differential service tax demand, if any, in the light of the decision given above. 5. Thus the appeals are allowed by way of remand. 6. In another case of Afcons Infrastructure Ltd (Supra) this Tribunal considered the identical issue wherein the following order was passed: 4. I have gone through the rival submissions. I find that the issue is squarely covered by the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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