2019 (6) TMI 1596 - AT - Service Tax

Tribunal overturns Service Tax demand, interest, and penalties, finding appellants entitled to abatement.

M/s. S. prince High Tech Pvt. Ltd. Versus Commissioner of Cen. Excise, Nagpur

M/s. S. prince High Tech Pvt. Ltd. Versus Commissioner of Cen. Excise, Nagpur - TMI Issues Involved:1. Demand and recovery of Service Tax.2. Recovery of interest under Section 75 of the Finance Act, 1994.3. Imposition of penalty under Section 77 of the Finance Act, 1994.4. Imposition of penalty under Section 78 of the Finance Act, 1994.5. Eligibility for abatement under Notification No. 1/2006-ST.6. Centralized registration and CENVAT Credit availed.Detailed Analysis:1. Demand and Recovery of Service Tax:The Commissioner confirmed a demand of Service Tax amounting to Rs. 51,18,698/- under the proviso to Section 73(1) of the Finance Act, 1994. The appellants were found to have availed CENVAT Credit on input services, which disentitled them from claiming abatement under Notification No. 1/2006-ST. The appellants contended that they had not taken any CENVAT Credit on inputs/input services for the construction services provided at Tuticorin and thus were eligible for abatement. The tribunal found that the appellants had indeed not taken any CENVAT Credit for the services rendered under the category of 'Construction of Commercial or Industrial Complexes' and thus were entitled to the abatement.2. Recovery of Interest under Section 75 of the Finance Act, 1994:The Commissioner ordered the recovery of interest at the appropriate rate on the confirmed amount under Section 75 of the Finance Act, 1994. However, since the tribunal found that the appellants were entitled to the abatement and had not taken any CENVAT Credit for the relevant services, the basis for the interest recovery was negated.3. Imposition of Penalty under Section 77 of the Finance Act, 1994:A penalty of Rs. 10,000/- was imposed on the appellants under Section 77 of the Finance Act, 1994 for contravening various provisions. The tribunal's finding that the appellants were entitled to the abatement and had not taken CENVAT Credit suggests that the contravention alleged by the Commissioner was not substantiated, thus negating the basis for the penalty.4. Imposition of Penalty under Section 78 of the Finance Act, 1994:A penalty equal to the Service Tax amount of Rs. 51,18,698/- was imposed under Section 78 of the Finance Act, 1994 for suppressing the taxable value with intent to evade payment of Service Tax. The tribunal found that the appellants had not taken any CENVAT Credit on the input services used for providing the taxable services under the category of 'Construction of Commercial or Industrial Complexes,' thus negating the basis for the penalty under Section 78.5. Eligibility for Abatement under Notification No. 1/2006-ST:The appellants argued that they were entitled to the abatement under Notification No. 1/2006-ST as they had not availed any CENVAT Credit on the inputs/input services used for the construction services provided at Tuticorin. The tribunal agreed with this contention, noting that the appellants had filed ST-3 returns for the Tuticorin site without claiming any CENVAT Credit. The tribunal referenced similar cases, such as Lemon Tree Hotels Private Ltd, to support their decision that the appellants were entitled to the abatement.6. Centralized Registration and CENVAT Credit Availed:The Commissioner had noted that the appellants had centralized registration and had availed CENVAT Credit on input services from various premises. However, the tribunal found that during the period in question, the appellants were not registered for providing 'Commercial or Industrial Complex Services' and had not taken any CENVAT Credit for these services. The tribunal's examination of the records and tables provided by the Commissioner showed that the appellants had not availed CENVAT Credit for the relevant period and services, thus entitling them to the abatement under Notification No. 1/2006-ST.Conclusion:The tribunal set aside the impugned order, finding that the appellants were entitled to the abatement under Notification No. 1/2006-ST as they had not taken any CENVAT Credit on the inputs/input services used for providing the taxable services under the category of 'Construction of Commercial or Industrial Complexes.' The appeal was allowed, and the order pronounced in the open court.