TaxTMI 
TaxTMI 
2019 (6) TMI 1596
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....00/- (Rupees Ten Thousand only) on the Noticee under Section 77 of the Finance Act, 1994 for the reasons mentioned above; (iv) I impose a penalty of Rs. 51,18,698/- (Rupees Fifty One Lakhs Eighteen Thousand Six Hundred and Ninety Eight Only) on the Noticee under Sectio0n 76 of the Finance Act, 1994. In this regard, the attention of the Noticee is invited to the relevant provisos to Section 78 of the Finance Act, 1994 as per which if the service tax determined under proviso to Section 73(1) and interest payable thereon under Section 75 is paid within thirty days from the date of communication of this order, the amount of penalty liable to be paid under Section 78 shall be 25% of the service tax determined, provided this reduced penalty is also paid within the said period of thirty days." 2.1 Appellants are providing services such as Manpower Recruitment Agency Services, Maintenance or Repair Services, Business Auxiliary Services, Construction Services, Erection Commissioning and Installation Services, Work Contract Services etc. They are having centralized registration in respect of all the premises from where they provide services, at Nagpur. They are workin....
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....ply of skilled manpower to Thermal Power Stations, pan India, to pick foreign material from coal carrying conveyor belts; • In May 2010, they were sub contracted for construction activity to be undertaken at Tuticorin for TNEB. Work was undertaken during the period 14.06.2010 to 07.04.2012; • For these activities they had taken separate single registration in Tuticorin under "Commercial or Industrial Construction Services". They also filed the ST-3 returns for these Service at Tuticorin for the period October 2010 to March 2011 and April 2011 to October 2011. From these returns it is quite evident that they had not taken any CENVAT Credit on the inputs/ input services received; • Subsequently due to operational difficulties, receipts pertaining to Tuticorin Site were shown in the return filed at Nagpur under Centralized Registration; • They had only once taken the CENVAT Credit against the input services i.e. Insurance Premium, in respect of Manpower Supply Services. Even this credit was not carried forward in subsequent returns, and should be treated as not taken; • No input service credit has been taken in respect o....
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....ing premises + 1 new service CIC 28.1212 + 5 new premises making total to 42 premises Shajanpur (UP), Hisar/ Jharli (Haryana), Beed (MS), Sipat (C'garh) No Change in existing Services 4.3 From the above table it is evident that during the period upto 20.04.2012, appellants were providing five services from the premises registered under the Centralized Registration at Nagpur namely Manpower Recruitment and Supply Services (MRSA), Management Maintenance & repair Services (MMR), Erection Commissioning and Installation Services (ECI), Business Auxiliary Services (BAS), Work Contract Services (WCS). In the table in para 18, Commissioner also records that credit in respect of the input services have been taken as follows: Month Oct 10 Nov 10 Dec 10 Jan 11 Feb 11 Mar11 OB 0 14324 15354 16384 18241 21232 Credit taken on Inputs 10380 0 0 0 0 0 Credit taken on Inputs 3944 1030 1030 1857 2991 10330 Credit Utilized 0 ....
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....ncrete including removing the loose rust deteriorated on the reinforcement by brush cleaning with jet air etc., including all labourers, tools, equipments staging propping etc., complete as directed by the engineer at site. 2,81,710 3 Scrapping and cleaning the concrete beams and slabs using REEBAKLENS FOSROC ACID CLEANING LIQUID/ equivalent in 1:1 ratio with water including cost of all materials, labour, lead, lift etc., complete as directed by the engineer at site. 34,67,200 4a Applying one coat of Nitro Zinc/ equivalent primer after thorough cleaning of rust in the reinforcement rate including cost of all materials, labour, lead, lift head load etc., complete as directed by the engineer at site. 3,44,750 4b Providing fabricating and erecting slurry tight from work with plywood shutters with suitable supports, which do not deform (or) micro concrete for beams columns including cost of all materials, labour, lead, lift head load etc., complete as directed by the engineer at site. 5,24,020 4c Providing micro concrete using Rendroc RG (or equivalent as per manufacturer's....
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.... arrived by the Commissioner, that the demand is in respect of the Construction of Commercial or Industrial Complexes in respect of the major portion of demand. 4.7 For the period after 20.04.2012, when the appellants had shifted and obtained registration under the category of "Construction of Commercial or Industrial Complexes" in their Centralized Registration at Nagpur, they have not taken any CENVAT Credit. Commissioner has himself rendered the finding that they had taken the disputed credit during the period October 2010 to March 2011. Thus the appellants had not availed any CENVAT Credit during the period after 20.04.2012. 4.8 From the facts as stated above we are of the view that appellants had not taken credit in respect of inputs or input services for rendering the services under the category of "Construction of Commercial or Industrial Complexes". The benefit of abatement under Notification No 1/2006-ST is admissible subject to the condition as below: "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 ....
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..... It is an unimaginable that a hotel can render these services without a building in its place. In our considered view, the input services are availed by the appellant in respect of Works Contract Services, Project Management Services and Architectural Professional Services used for construction of a building, which subsequently is put into use for rendering taxable output services. We find that the adjudicating authority was in error to rely upon the Board Circular No. 98/1/2008-S.T., dated 4-1-2008 in as much, the definition of input services during the relevant period does not bar availment of Cenvat credit all input services. In order to appreciate correct position of law, the definition of input services under Rule 2(l) of the Cenvat Credit Rules, 2004 as was during the relevant period of these cases is reproduced : input service means any service, - (i) used by a provider of taxable service for providing an output service; or (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal, and includes services used in relation to setting up,....
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....as to whether the appellant is a factory or manufacturer or service provider in view of the fact that it is not disputed by Mr. Y.N. Ravani, Learned Counsel appearing for the Revenue in this Tax Appeal that the appellant provides service on port for which he is getting jetty constructed through the contractor and the appellant has claimed input credit on cement and steel. The cement and steel were not included in Explanation 2 from 2004 up to March, 2006. The Cenvat Credit Rules, 2004 were amended in exercise of the powers conferred by Section 37 of the Central Excise Act, 1944 with effect from 7-7-2009, the date on which it was notified by the Central Government from the date of the notification. According to Learned Counsel for the appellant, this amended definition would apply only to the factory or manufacturer and would not apply to the service provider. According to him, either before the amendment made in the year 2009 or thereafter, the appellant was neither factory nor manufacturer and he has only constructed jetty by use of cement and steel for which he was entitled for input credit as jetty was constructed by the contractor, but the jetty is situated within the port area....
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....inners Limited v. Union of India and Others, reported in (2011) 11 SCC 408 = 2011 (266) E.L.T. 145 (S.C.) would not be applicable to the facts of the instant case. 9. Mr. Ravani has also vehemently urged that since jetty was constructed by the appellant through the contractor and construction of jetty is exempted and, therefore, input credit would not be available to the appellant as construction of jetty is exempted service. The argument though attractive cannot be accepted. The jetty is constructed by the appellant by purchasing iron, cement, grid, etc., which are used in construction of jetty. The contractor has constructed jetty. There are two methods, one is that the appellant would have given entire contract to the contractor for making jetty by giving material on his end and then make the payment, the other method was that the appellant would have provided material to the contractor and labour contract would have been given. The appellant claims that he has provided cement, steel, etc., for which he was entitled for input credit and, therefore, in our opinion, the appellant was entitled for input credit and it cannot be treated that since construction of jetty was e....
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.... given contract. 4.4 The next issue for consideration is in a case/contract where abatement 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 Tax liability 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." 5.1 In view of the discussions as above we do not find an....