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TMI Blog2022 (5) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... ngaged in construction of residential complex service. They had entered into an agreement dated 19.4.2014 with M/s. Ramavat Energy Pvt Ltd. Jaipur for construction of 'Trimurty's Ariana" Group Housing Project at Ramnagaria, Jagatpura, Jaipur. Vide the said agreement, the following building material was agreed to be provided to the appellant on free issue basis by M/s. Ramavat Energy Pvt Ltd. for construction of 'Trimurty's Ariana'. 1. Cement, 2. TMT Rebars (Reinforcement Steel) 3. Tiles, Granite, Marble, Kota stone, etc. 4. Electrical material 5. Sanitary & water supply material 6. Anti-termite wood paints for chakhats 7. 3" thick heat insulation materials 8. Any other material as per contract. The Audit Team observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is on the said amount that the credit has been availed by the appellant, no question of said amount to include VAT at all arises. The allegations were therefore, absolutely wrong. There is no dispute that the appellant has paid tax hence, cannot be denied availment of Cenvat Credit. Confirmation of demand based on said allegations is therefore, liable to be set aside. In addition, it is submitted that the Commissioner (Appeals) otherwise has gone beyond the show cause notice. The question framed by him in para 5 of the order under challenge is absolutely out of the scope of impugned show cause notice. His findings about the impugned transaction to have been covered under section 67 D of Finance Act, i.e. the negative list is absolutely bey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material, it is to be deducted on the actual basis. Apparently and admittedly, nothing has been deducted from the total value. Hence, there is no error in the order under challenge. The appeal is accordingly, prayed to be dismissed. 4. After hearing the rival contentions and perusing the record, it is observed and held as follows: Following are the admitted facts: (i) The appellant executed the agreement with M/s. Ramavat Energy Pvt Ltd. for construction of residential complex, namely 'Trimurty's Ariana' in Jaipur. (ii) The appellant credit to supply building material to the contractor on free issues basis. Accordingly, the construction in question is in the nature of work contract. (iii) The contractor has issued invoices along wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contractor M/s. Ramavat Energy Pvt Ltd. from the appellant. Based upon the total value of the cement received vide 18 invoices of table No. 1 that the total amount of Rs.3,60,14,605/- has been worked out for cement. RUD 4 shows that the said amount of VAT of Rs. 45,60,802/- has been paid including the credit availed with respect to total amount of cement issued to the contractor. Credit availed by the appellant on the total amount of cement issued to the contractor freely by him is Rs.2,55,405/-. Similar are the findings with respect to all other items provided free to the appellant by the contractor and similar are the observations with respect to all 18 number of invoices. 7. As pointed out by learned Departmental Representative, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have been deducted from the gross value/ total value of the said goods. The invoices of the appellant is silent about the said deduction. 8. However, it has already been held that appellant shall be entitled to take Cenvat Credit on the amount of service tax paid by the contractor. Since the service tax has already been paid on the gross value /the total value, appellant cannot be denied availment of credit proportionate to the said value till the occasion arises for refund of the said service tax on the ground that the gross value on which the service tax was paid was inclusive of VAT. It is not the case of Department that excess Service Tax paid by the contractor has been refunded or has paid applied by the payee for the refund. Hence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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