Tax Management India. Com
                        Law and Practice: A Digital eBook ...

Category of Documents

TMI - Tax Management India. Com
Case Laws Acts Notifications Circulars Classification Forms Manuals SMS News Articles
Highlights
D. Forum
What's New

Share:      

        Home        
 

TMI Blog

Home List
← Previous Next →

2018 (8) TMI 179

ellant in respect of some the contracts availed cenvat credit and discharged the service tax on 100% gross value of the service, they cannot opt for N/N. 1/2006-ST, for remaining contract. - Held that:- From the 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 N/N. 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 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 .....

X X X X X X X

Full Text of the Document

X X X X X X X

ntract 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 available to service provider therefore, once they have opted not to avail exemption Notification No. 1/2006-ST, in some of the contracts and availed the cenvat credit, even in other contract on which exemption Notification No. 1/2006-ST was availed, the condition of Notification i.e. credit should not be availed on the input services stand violated hence, the exemption is not available. 5. We have carefully considered the submission made by both the sides. We find that the whole issue revolved the condition of Notification No. 1/2006-ST which is retracted below: Effective rate of Service tax for specified 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 .....

X X X X X X X

Full Text of the Document

X X X X X X X

ut 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 availed the cenvat credit, and the same has no effect on the service where the exemption Notification No. 1/2006-ST was availed. This issue has been considered wherein the judgment cited by Ld. Counsel in the case of Bharat Heavy Electrical Ltd (Supra), Division Bench of this Tribunal dealing with the identical issue passed the following 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 .....

X X X X X X X

Full Text of the Document

X X X X X X X

or capital goods or the CENVAT 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]. 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 CEN .....

X X X X X X X

Full Text of the Document

X X X X X X X

input services shall be taken. So long as this condition is 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 tha .....

X X X X X X X

Full Text of the Document

X X X X X X X

 

 

← Previous Next →

 

 

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || Database || Members || Refer Us ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.
|| Blog || Site Map - Recent || Site Map ||