TMI Blog2023 (6) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... disprove the decision reached by the adjudicating authority of dropping the demand as the basic allegations in the show cause notice were not supported by any evidences. It is a matter of record that the adjudicating authority has verified statutory return like ST 3 return as well as qualified Chartered Accountant has verified and given certificate to the Adjudicating Authority. The adjudicating authority has correctly reached at the conclusion that input or input services cenvat credit has not been availed by the respondent assessee while performing the Commercial and Industrial Construction Service - the appeal is without any merit and therefore, deserves to be dismissed. - Service Tax Appeal No. 404 of 2012-DB - - - Dated:- 14-6-2023 - HON'BLE MEMBER (TECHNICAL), MR. RAMESH NAIR And HON'BLE MEMBER (TECHNICAL), MR. C.L.MAHAR Shri Prakash Kumar Singh, Superintendent (AR) for the Appellant Shri Anupam Dighe, Advocate (AR) for the Respondent ORDER C. L. MAHAR The brief facts of the matter are that the respondent assessee M/s. Kriloskar Brothers Limited is engaged in providing taxable services under the category of Commercial Construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t service under the category Construction Service / Commercial and Industrial Construction Service and thereafter arrive at the objective satisfaction as to whether the benefit of Notification No. 15/2004-ST dated 09.04.2004 and Notification No. 1/2006-ST dated 01.03.2006, as the case may be is available or otherwise. 1.4 During the course of hearing the respondent assessee mentioned that the cenvat credit availed by the respondents under other services was availed and utilized for payment of service tax under the category of construction service. It has been contended by the Respondent that the allegation that cenvat credit with respect to other inputs, input services availed and utilized for payment of service tax under the category of construction service is correct and not deniable. However, it has further being contended that the Commissioner order has wrongly been reviewed by the committee and request made in the appeal for remanding the case for fresh adjudication is without any application of mind. 2. The Learned Advocate for the respondent has relied on the following judgments in this regard. Bharat Heavy Electricals Ltd. vs. Commissioner of C.Ex., Nagpur - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riction is meant for the said category of service which in the present case is Commercial or Industrial Construction Service . Therefore, the said assessee is not permitted to take cenvat credit of duty on inputs or capital goods or the CENVAT credit of service tax on input services, used for providing Commercial or Industrial Construction Service in order to avail abatement of 67% provided in the said notification. The said assessee is within its right of taking the cenvat credit of duty on inputs or capital goods or the CENVAT credit of service tax on input services on services other than Commercial or Industrial Construction Service . Taking cenvat credit for any other taxable category apart from Commercial or Industrial Construction Service will not debar the said assessee from claiming abatement under the said notification. I also observe that once the assessee is eligible to avail the abatement of 67% provided in the said notification, he is at liberty to make payment of service tax either in cash or from the accumulated balance of cenvat credit available with him by virtue of cenvat credit taken on other taxable services as both are lawfully accepted modes of service t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T-3 return April -06 to September-06 Nil Nil 4(A) October-06 to March- 07 Nil 23,80,716/- (Dec 06 Jan 07) 4 A (I) (a), (b) (c) April 07- to September -07 Nil 4A (I) (a), (b) (c) October-07 to March-08 Nil 4A (I) (a), (b) (c) April- 08 to September -08 Nil 2,18,650/- 4A (I) (a), (b) (c) 27.6 Thus, it is amply clear that the said assessee has not taken any cenvat credit of duty on inputs or capital goods or the CENVAT credit of service tax on input services, used for providing Commercial or Industrial Construction Service . They have only utilized the cenvat credit taken for other taxable services for payment of service tax under the category of Commercial or Industrial Construction Service . 27.7 There is sufficient evidence before me to conclude that the said assessee has n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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