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TMI Blog2019 (9) TMI 1366X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Service Tax, Kolkata has dropped the proceedings initiated against the respondent by a show cause notice dated October 14, 2009, along with the demand of service tax contained therein. 2. The brief facts of the case are: (a) The respondent, a public sector undertaking, is engaged in the business of setting up various power plants on turnkey/EPC contract basis in various parts of Eastern India. It is duly registered under the Finance Act, 1994 (in short, the "Act") and discharged service tax on the taxable services under categories of "industrial and commercial construction services" and "erection, commissioning and installation services" rendered by it during the period March 01, 2006 to June 31, 2009. (b) A show cause noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... availing abatement under the said Notification and hence demand was made disallowing 67% abatement availed during the said period on ICS services relatable to the projects where the abatement had been availed. 3. It is however the contention of BHEL that in respect of ICS it had availed abatement in terms of the said Notification in respect of services rendered in (i) Bakreswar- 4 & 5, (ii) Santaldih 5, (iii) Korba (East) upto October, 2007 and (iv) Mejia 5 & 6 upto March 2006 projects. In respect of the services rendered in the three other projects, being Korba (East), Mejia 5 & 6 and Chandrapura 8 BHEL paid service tax on the full gross value of the services from November 2007, April 2006 and March 01, 2006 respectively and no benefit u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of the Revenue that the Adjudicating Authority's dropping of the demand of Rs. 27,37,52,502/- of service tax made on the respondent by the show cause notice was not legal and proper. 6.1 The ground on which the Revenue has assailed the impugned order is that once credit is availed, abatement of 67% in terms of the said Notification is not available to an assessee who has become ineligible therefor and that subsequent reversal of credit is of no help. An exemption notification, according to the Revenue, has to be considered strictly and only when the credit was never utilised, on reversal of the same the benefit of the said notification can be extended. Reliance has been placed in support of this contention on the decision of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on had been availed by the assessee, the requirement of the said Notification stood duly satisfied. From the impugned order of the Commissioner it was also apparent that the assessee had duly discharged the burden of proof cast upon it for entitlement to the abatement allowed under the said Notification. All relevant documents and particulars on record were duly submitted in the reply to the show cause notice and before the Commissioner during adjudication proceedings and they were duly scrutinised by the Adjudicating Authority. There is, thus, no infirmity in the impugned order of the Commissioner. 7.1 Relying upon the following cases it has been further contended on behalf of BHEL that reversal of cenvat credit with interest attributable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, the assessee returned or paid back in January, 2005 even the earlier modvat credit it had taken and utilised. In this scenario, the question that arose before the Hon'ble Supreme Court was as to whether the assessee fulfilled the pre-condition in the notification in order to become eligible to get the benefit of the exemption thereunder. Dealing with this issue the Hon'ble Supreme Court observed and held as under:-. "3. We note that five-Member Bench of the Tribunal in the case of Franco Italian Co. Pvt. Ltd. Vs. Commissioner [2000 (120) ELT 792 (T-LB)] had taken the view that even if the MODVAT credit was utilised but, thereafter, refunded, it would amount to not utilising the said MODVAT credit. Same view has been taken by the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal. Tax appeals are dismissed." 8.3 The same has also been held by the Coordinate Benches of the Tribunal in Shapoorji Pallonji & Co. Ltd. Vs. CCE, (supra) and Kony Labs IT Services Pvt. Ltd. Vs. CC, CEx &ST (supra). 8.4 We have considered the decision of the Hon'ble Supreme Court in Dilip Kumar's case (supra) and find that the same is clearly distinguishable and is inapplicable, the issue herein being different. 8.5 The aforesaid decisions of the Hon'ble Supreme Court, the Gujarat High Court and the Tribunal fully covers the instant case and on respectful application thereof it is conclusive that the impugned order of the Commissioner is legal, valid and proper and that the instant appeal of the Revenue is without any merit or su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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