TMI Blog2019 (7) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... pital goods should not have been availed. Admittedly, the said credit has not been availed. The condition is absolutely silent about availment of credit on input services. Hence, we are of the opinion that the Adjudicating Authority below has committed an error while considering the availment of credit on input services as the condition for denial of the benefit of said Notification. Rule 2(c) of Service Tax (Determination of Value) Rules, 2006 - services provided by the restaurant - HELD THAT:- Perusal of rule makes it clear that 40% abatement on total amount is availed in case of restaurant services. Explanation 2 thereof clarifies that the provider of taxable service shall not take the cenvat credit of duties or cess paid on any go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices has been denied as it was proposed vide show cause notice dated 15.10.2015. 2. The relevant factual matrix is: 2.1 The appellants are registered under the category of providing Restaurant Services, Accommodation Services, Mandap Keeper Services, Business Auxiliary Services, Cab Operator Services, Health Club And Fitness Centres, Dry Cleaning Services. Vide the aforesaid show cause notice, appellant was alleged to have evaded an amount of ₹ 83,59,428/- during the period from October, 2013 to March, 2014 on the ground that since the appellant has availed the cenvat credit on input services, the benefit of abatement to Notification No. 26/2012 ST dated 20.06.2012 is not available to them. The benefit w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has submitted that the learned Commissioner has committed no error while holding that the abatement benefit is not available on the ground of availment of cenvat credit by the appellant. The Appeal is accordingly prayed to be dismissed. 6. After hearing both the parties and perusing the record as well as the Order under challenge, we are of the opinion as follows: 6.1 Foremost the Notification No. 26/2012 dated 28.06.2012 has to be looked into. The relevant entry at Serial No. 6 reads as follows: Sl. No. Description of taxable service Percentage Conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any manner as a part of the activity, at a restaurant 40 Explanation 1: --------- Explanation 2: For the removal of doubts, it is clarified that the provider of taxable service shall not take cenvat credit of duties or cess paid on any goods classifiable under Chapters 1 to 22 of the Central Excise Tariff Act, 1985 (5 of 1986). 7.1 Perusal makes it clear that 40% abatement on total amount is availed in case of restaurant services. Explanation 2 thereof clarifies that the provider of taxable service shall not take the cenvat credit of duties or cess paid on any goods classifiable under Chapters 1 to 22 of the Central Excise Tariff Act, 1985 i.e. the avai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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