2022 (9) TMI 798 - AT - Service Tax

Contract-by-Contract Basis: Availment of CENVAT Credit

The Tribunal allowed the appeal, confirming that the appellants can avail Notification No. 1/2006-ST for specific contracts where no CENVAT credit is ... CENVAT Credit - case of the Department is that since the appellant in respect of some contracts availed Cenvat credit and discharged the Service Tax on 100% gross value of service - eligibility for abatement of 67% in terms of Notification No. 1/2006 – ST - HELD THAT:- The issue in the appellant’s own case has been settled by this Tribunal in M/S SMP CONSTRUCTIONS PVT LTD VERSUS C.C.E. & S.T. -VADODARA-II [2018 (8) TMI 179 - CESTAT AHMEDABAD] where it was held that In the present case the appellant in respect of the service on which N/N. 1/2006-ST availed, admittedly not availed cenvat credit in respect of input or capital goods or input services used in providing such taxable services. Therefore, the condition of the Notification was complied with, merely in some of the contract the appellant had availed the cenvat credit, and the same has no effect on the service where the exemption Notification No. 1/2006-ST was availed. From the above decision of this Tribunal, it can be seen that the legal issue and the facts are identical to the present case, the only difference is the period of dispute, which is prior to the decision cited above - since the issue is already settled in the above decision of appellant itself, the impugned order is set aside. Appeal allowed - decided in favor of appellant. Issues Involved:1. Applicability of Notification No. 1/2006-ST for availing abatement and CENVAT credit in different contracts.2. Compliance with conditions of Notification No. 1/2006-ST.3. Interpretation of exemption notifications in relation to CENVAT credit.Issue-wise Detailed Analysis:1. Applicability of Notification No. 1/2006-ST for availing abatement and CENVAT credit in different contracts:The appellants provided Commercial Construction Services and, in some contracts, paid Service Tax on 100% of the gross value while availing CENVAT credit. In other contracts, they paid Service Tax on 33% of the gross value after availing abatement of 67% under Notification No. 1/2006-ST without availing CENVAT credit. The Department argued that since the appellant availed CENVAT credit in some contracts, they could not opt for Notification No. 1/2006-ST for the remaining contracts. The Tribunal referenced its previous decision in the appellant's case (Order No. A/11599/2018 dated 01.08.2018), which allowed the appellant to avail the notification benefits as long as the conditions of the notification were met for each contract individually.2. Compliance with conditions of Notification No. 1/2006-ST:The Tribunal examined the conditions under Notification No. 1/2006-ST, specifically the proviso that the exemption shall not apply if 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. The Tribunal found that the appellant complied with this condition for the contracts where they availed the notification, as they did not take CENVAT credit on inputs, capital goods, or input services for those specific contracts. The Tribunal reiterated that availing CENVAT credit in some contracts does not affect the eligibility for abatement under Notification No. 1/2006-ST in other contracts where CENVAT credit was not availed.3. Interpretation of exemption notifications in relation to CENVAT credit:The Tribunal referred to the case of Bharat Heavy Electrical Ltd., where it was held that the condition of non-availment of CENVAT credit applies to each individual contract. The Tribunal clarified that the notifications do not stipulate that the condition of non-availment of CENVAT credit should be uniformly applied across all contracts executed by the assessee. The Tribunal emphasized that it is for the assessee to choose whether to avail or not avail CENVAT credit for each specific contract, and this choice does not affect the eligibility for abatement under the notifications for other contracts. The Tribunal also cited the case of Afcons Infrastructure Ltd., which supported the view that the appellants can avail Notification No. 1/2006-ST for projects where no CENVAT credit is availed, while availing CENVAT credit for other projects.Conclusion:The Tribunal concluded that the issue is already settled in the appellant's favor as per the previous decision in their own case. The impugned order was set aside, and the appeal was allowed, affirming that the appellants can avail Notification No. 1/2006-ST for specific contracts where no CENVAT credit is availed, irrespective of availing CENVAT credit in other contracts. The Tribunal's decision was dictated and pronounced in the open court.