TaxTMI 
TaxTMI 
2019 (6) TMI 1596
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.... 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 working under the CENVAT Credit Scheme. 2.2 During course of Audit....
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.... 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 of service used for providing the services provided at Tuticorin and hence in view of the decision of the tribunal in case of Lemon Tree Hotels Private Ltd [2018 (13) GST....
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....pto 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 0 0 0 0 0 Closing Balance 14324 15354 16384 18241 21232 31562 From the table above it is clear that the appellants have during the period October 2010 to March 2011 taken credit on the inputs and input services to the tune of Rs. 31562/-. 4.4 From the above two referred tables it is quite evident that during the period when the appellants have taken CENVAT credit, the appellants were not registered for providing the Commercial or Indust....
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....st 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 specifications. This mixed micro concrete should be placed continuously for an average thickness of 110 mm including cost of all materials, labour, lead, lift head load etc., complete as directed by the engineer at site. 48,69,840 4d Applying one coat of polymer modified Acrylic Emulsion (Nitro Bond AR or equivalent) in columns, beams etc., including cost of all materials, labour, lead, lift etc., complete as directed by the engineer at site. 84,710 5a Applying one coat of DEKGUARD's (or) equivalent by spraying to the concrete surface to be carried out as per manufacturers specifications in columns, beams etc., including cost of all materials, labour, lead, lift etc., complete as directe....
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....es 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 providing such taxable service, has been taken under the provisions of the CENVAT Credit Rules, 2004; or (ii) the service provider has availed the benefit under the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 12/2003-Service Tax, dated the 20th June, 2003 [G.S.R. 503 (E), dated the 20th June, 2003]". Since the appellants have not taken any credit in the respect of the inputs or input services used for providing the taxable services under the category of "Construction of Commercial or Industrial Complexes" the benefit of the abatement provided by the notification cannot be denied to them. We also find that similar view has been expressed by the tribunal in case of Lemon Tree Hotels PV Ltd [2018 (13) GSTL 305 (T-Chennai)] in following words....
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....d : 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, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security, inward transportation of inputs or capital goods and outward transportation upto the place of removal. It can be seen from the above reproduced sub-rule, that input services includes the services used in relation to setting up, modernization, renovation of premises of provider of output services. In the case in hand, the definition is reproduced as above categorically will ....
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....ld 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 and the appellant is a service provider. According to the appellant, his case is squarely covered by the judgment of the Division Bench of the Andhra Pradesh High Court in Commissioner of Central Excise, Visakhapatnam-II v. Sai Sahmita Storages (P) Limited, 2011 (270) E.L.T. 33 (A.P.) = 2011 (23) S.T.R. 341 (A.P.) wherein in Paragraph 7, it has been clearly held that a plain reading of the definition of Rule 2(k) would demonstrate that all the goods used in relation to manufacture of final product or for any other purpose used by a provider of taxable service for providing an output service are eligible for Cenvat credit. It is not in dispute that the appellant is a taxable service provider on port under the category of port services. Therefore, the appellant was entitled for input credit and the decision of the Division ....
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....ethod 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 exempted, the appellant would not be entitled for input credit. The view taken contrary by the Tribunal deserves to be set aside. It can be seen from the above reproduced paragraphs of the judgment of the Hon'ble High Court of Gujarat the issue of availment of Cenvat credit on the input services which are used for bringing into existence of immovable property are also eligible for availment of Cenvat credit." 5.5 In the case of Bharat Heavy Electrical Ltd. v. CCE, Nagpur - 2014 (34) S.T.R. 430 (Tri.-Mum.), the Tribunal had occasion to analyse a similar issue with regard to availability of abatement under the Notification No. 1/2006-S.T. The Tribunal observed as under :- "4.2 A plain reading of the Notifications clearly shows that the condition relating to non-availment of Cenvat credit on inputs/input services applies t....