TMI Blog2024 (4) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... SHI, MEMBER (TECHNICAL) Ms Madhumita Singh, Advocate for the Appellant. Shri B Sangameshwar Rao, AR for the Respondent. ORDER Issue involved in this case is whether the appellant is eligible for benefit of Cenvat Credit on 16 specified services when they availed benefit of Notification No. 1/2006-ST dated 01.03.2006 2. The Appellant has challenged Order-in-Original No. 77/2013-Adjn (Commr) ST dated 25.10.2013, (Impugned Order) passed by Commissioner - Customs, Central Excise Service Tax, confirming additional demands of Rs 26,98,168/- under the category of Restaurant Service, and Rs. 65,40,315/- under the category of Short-term Accommodation Service under Section 73(2) Act, as proposed in the Show Cause Notice O.R. No. 254/2012-Adjn. (Commr) ST dated 31.10.2012 for the period from 1st April 2011 to 30th September 2011 and from 1st October 2011 to 31st March 2012, denying the benefit of abatement claimed under Notification No. 1/2006 dated 01.03.2006, while discharging service tax liability, on the grounds that instead of discharging liability in cash, it has utilised Input Tax Credit availed on account of 16 Specified services as provided under Rule 6(5) of the (CCR). 3. Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid appeals issue involved was of denial of benefit of abatement under Notification No. 1/2006 dated 01-03-2006 by the Department on the grounds that the Appellant was not entitled to avail the benefit of abatement, having availed and utilized the input tax credit of common input services as specified under Rule 6(5) that were procured for providing output services. The demands in all the aforesaid appeals were set aside. 7. Learned AR reiterated the reasoning recorded in the impugned order. 8. Heard both sides and perused the records. 9. We have gone through the orders placed on record by Appellant s Counsel. In the precedent orders passed by the Co-ordinate Bench (Hyderabad) of this Tribunal, in [2018 (10) G.S.T.L. 241 (Tri. - Hyd.)] Final Order Nos. A/31079 31080/2017, dated 20-6-2017 in Appeal Nos. ST/716/2012 ST/26265/2013 (own case of appellant), in paras 6,7 and 8 is has been held that: - 6. On careful consideration of the submissions made by both sides and perusal of records, we find that the issue that falls for consideration of this Bench is whether the service tax paid on Works Contract Services, Project Management and Architectural Professional Services can be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the clarification given by the Board in C.B.E. C. Circular dated 4-1-2008 is going beyond the definition as reproduced is herein above. We find that similar issue as to eligibility to avail the Cenvat credit on design and engineering of pipe line, services rendered by the pipeline laying of contractors, was denied in the case of Reliance Gas Transportation Infrastructure Ltd., (supra), holding that these services were utilized for brining into existence an immovable property. The Bench after considering the definition of input services, held that the provisions of Section 2(l) of the Cenvat Credit Rules, 2004 very clearly indicate eligibility to avail Cenvat credit of the service tax paid on these services. 8. Views of the Tribunal have been fortified by decision of the Hon ble High Court of Gujarat in the case of Mundra Ports and Special Economic Zone Ltd., (supra) the ratio is in paragraph No. 7, 8 9 which we with respect reproduce :- 7. It is not disputed that jetty was constructed and input credit was claimed on cement and steel. The aforesaid definition of Rule 2(k) was applicable and Explanation 2 did not provide that cement and steel would not be eligible for input credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhra Pradesh High Court squarely applies to the facts of the case and answered the question on which the appeal has been admitted. 8. Mr. Y.N. Ravani, learned counsel for the Revenue has placed reliance on the decision of the Larger Bench of the Tribunal in Vandana Global Limited v. Commissioner of Central Excise, Raipur, 2010 (253) E.L.T. 440. We have carefully gone through the decision of the Larger Bench of the Tribunal. We do not find that amendment made in Cenvat Credit Rules, 2004 which come into force on 7-7-2009 was clarificatory amendment as there is nothing to suggest in the Amending Act that amendment made in Explanation 2 was clarificatory in nature. Wherever the Legislature wants to clarify the provision, it clearly mentions intention in the notification itself and seeks to clarify existing provision. Even, if the new provision is added then it will be new amendment and cannot be treated to be clarification of particular thing or goods and/or input and as such, the amendment could operate only prospectively. In our opinion, the view taken by the Tribunal is based on conjectures and surmises as the Larger Bench of the Tribunal used the expression that intention behind a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn case), co-ordinate Bench following the order pronounced by Hyderabad Bench, has held that: - 5.1 The first issue is with regard to wrong availment of Cenvat credit. It is brought out from the records that the appellants were rendering taxable services of cab operator s service, health club and fitness centre service, internet cafe service and dry cleaning service. The input service credit was availed by appellant on construction services which were used for setting up of the premises from where the output services were rendered by the appellant. The department does not have a case that the above services were not rendered from the building constructed by the appellant for which the credit on construction activities was availed. Rule 6(5) as it stood during the relevant period states that credit is eligible on the services specified therein, if such services are not used exclusively for exempted services. Even if we consider that prior to 1-5-2011, the output services of short-term accommodation services and restaurant services were not taxable services, the appellants were rendering other taxable services like health club and fitness service, internet cafe service etc. Since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The second issue for consideration is the eligibility of abatement under Notification No. 1/2006-S.T. The Ld. Counsel for the appellant has much stressed on the words such services in the condition stated under the said Notification . The condition is reproduced as under:- Provided that this notification shall not apply in cases where, - (i) the Cenvat credit of duty on inputs or capital goods or the Cenvat credit of service tax on input services used for providing such taxable service , has been taken under the provisions of the Cenvat Credit Rules, 2004; 5.4 We find merit in this argument. During the disputed period (March 2011-2012 for this demand) the appellant has not availed any credit of input services used for providing short-term accommodation services and restaurant services. The credit already availed in 2009 was used to discharge the service tax liability. The Notification No. 1/2006-S.T. does not say that assessee cannot avail any credit at all. The condition is that the abatement would be available only if input service credit is not availed on input services used for providing such services specified in column 2 of the notification. In the appellant s own case repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement benefit is availed under Notification 15/2004 or 1/2006, without taking Cenvat credit on inputs or capital goods or input service and service tax liability is discharged on the reduced value, whether for the purpose of discharge of service tax liability, accumulated Cenvat credit arising from some other case/contract can be utilised or not. In our view, there is no such bar or restriction/prescribed in the notification. The notification only stipulates that in respect of a case/contract, where abatement is availed, no Cenvat credit on inputs, capital goods or input services shall be taken. So long as this condition is satisfied, abatement is permissible. Discharge of Service Taxliability on the non-abated portion of value is a totally different matter. Hence there is no bar/restriction in discharging Service Tax liability through accumulated Cenvat credit so long as no Cenvat credit is taken on the inputs/capital goods or input services used in the rendering of the service in the given case or contract and we hold accordingly. 6. Following the above decisions and after considering the facts and evidences presented before us, we hold that the demand raised in respect of wrong ..... X X X X Extracts X X X X X X X X Extracts X X X X
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