TMI Blog2019 (3) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... rendering services of erection, commissioning and installation and there have been the work orders, which include the value of material as well as the labour. CENVAT Credit - Held that:- The adjudicating authority has simply relied upon the ST-3 Return for holding that since cenvat credit has been availed one condition for abatement stands not complied with, while denying the benefit of the Notification. But it is the simultaneous acknowledgement that the format of ST-3 Return is very restrictive and there is no scope of bifurcation. Hence, merely relying upon ST-3 Return for holding the non-compliance of the condition, to my opinion was not justified on the part of the adjudicating authority. Specially when there was enormous evidence giving bifurcation for both kind of services (eligible and not eligible for the abatement benefit under the impugned Notification) - the lack of evidence as has been held a ground for rejecting the appeal is not based on the true facts of the case and is rather against the record. Time limitation - Held that:- It is observed that apparently there had been two prior audits of the appellant’s record. First being in the year 2009, admittedly the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant and Mr. Poddar, ld. D.R. for the Department. 3. It is submitted for the appellant that the appellants are engaged in providing two kinds of services to the telephone operators i.e. the services of creating the foundation of mobile towers, which includes the cost of material as well as the labour, and secondly, the services of technical testing of the transmission of signals from these towers which services do not include the value of material. It is submitted that both the services are unrelated and independent. It has also been brought to the notice that Department earlier conducted two audits i.e. on 15 February, 2009 for the period September, 2007 to September, 2009 and on 2 April, 2013 for the period October, 2009 to June, 2012. No such shortcoming as noticed vide the impugned show cause notice was ever brought to the notice of the appellant. It is impressed upon that the previous said audit orders are sufficient to hold that the entire facts were to the notice of the Department way back in the year, 2009 itself. The show cause notice of the year 2013 is therefore barred by time. Due to the said reason no suppression and misrepresentation of facts can be allege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 006 ST dated 01.03.2006, as is alleged in the show cause notice and confirmed against the appellant in the order under challenge. 7. For the purpose the requisite entry of the said Notification is hereby looked into, which reads as follows:- Sl. No. Subclause Of clause (105) of Section 65 Description of taxable service Conditions % 5. (zzd) Erection, commissioning or installation, under a contract for supplying a plant, machinery or equipment and erection, commissioning or installation of such plant, machinery or equipment. This exemption is optional to the commissioning and installation agency. Explanation.- The gross amount charged from the customer shall include the value of the plant, machinery, equipment, parts and any other material sold by the commissioning and installation agency, during the course of providing erection, commissioning or installation service. 33 8. The bare perusal makes it clear that to avail the abatement as granted under the said Notification following three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellants were rendering services of erection, commissioning and installation and there have been the work orders, which include the value of material as well as the labour. With respect to availment of cenvat credit, it is observed that the adjudicating authority has simply relied upon the ST-3 Return for holding that since cenvat credit has been availed one condition for abatement stands not complied with, while denying the benefit of the Notification. But it is the simultaneous acknowledgement that the format of ST-3 Return is very restrictive and there is no scope of bifurcation. Hence, merely relying upon ST-3Return for holding the non-compliance of the condition, to my opinion was not justified on the part of the adjudicating authority. Specially when there was enormous evidence giving bifurcation for both kind of services (eligible and not eligible for the abatement benefit under the impugned Notification). As a result, I hold that the lack of evidence as has been held a ground for rejecting the appeal is not based on the true facts of the case and is rather against the record. 11. Finally coming to the plea of show cause notice being barred by time, it is obse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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