TaxTMI 
TaxTMI 
2024 (1) TMI 581
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....d counsel for the appellant and the learned authorised representative for the Revenue and perused the records. 3. The audit team of the department audited the appellant's records for the period 2009 to 2010 and pointed out that it had not filed the Service Tax Return in ST-3 for the half year ending March 2010. The anti-evasion party of the department also visited the appellant and found that three service tax returns were not filed. SCN dated 7.6.2012 was issued to the appellant demanding service tax, proposing to deny CENVAT credit and disallow abatement under notification number 1/2006-ST. 4. In reply, the appellant accepted the liability of service tax under Business Auxiliary Service, Erection, Commissioning and Installation Service and Transportation of goods by road service and paid the tax and the demands were confirmed in the impugned order and the amounts paid by the appellant were appropriated towards them. 5. The issues which are before us to decide are as follows: a) Can the demand of Rs. 23,25,912/- as differential service tax on installation of towers by denying the benefit of abatement under notification no. 1/2006-ST dated 1.3.2006 be sustained al....
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....and it was eligible for the benefit of abatement under the notification. As far as the invoice for the installation service is concerned, the transmission towers were materials supplied free by the service recipient and they cannot be included in the value as held in Bhayana Builders Ltd. versus CCE [2013(32) STR 49(LB)] by the Larger Bench and upheld by the Supreme Court [2018(10) GSTL 401 (SC)]. 9. As far as the availment of CENVAT credit of the service tax paid by the sub-contractors is concerned, learned counsel submits that as per the decision of the Larger Bench of this Tribunal in Commissioner of Service Tax versus Melange Developers [2020(33)GSTL 116 (Tri-LB)], it can avail CENVAT credit of the service tax paid on input services provided by its sub-contractor. He relies on the CBEC's Circular No. 80/10/2004-ST dated 17.9.2004 in which it was clarified that the exemption under Notification No. 12/2003-ST would be available even if credit of input services is availed. 10. Learned authorised representative for the Revenue supported the impugned order on this question. He submitted that although two invoices were raised by the appellant separately for the value of the tra....
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.... 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]. Explanation. - For the purposes of this notification, the expression "food" means a substantial and satisfying meal and the expression "catering service" shall be construed accordingly. [Notification No. 1/2006-S.T., dated 1-3-2006] [emphasis supplied] 11. He submits that if the appellant wants to avail this optional exemption, it has to fulfill its conditions viz., the value of the goods which it sold must be included in the value and it cannot also take CENVAT credit on inputs, capital goods and input services. As the appellant had not met either of these conditions, it was not entitled to the benefit. The CBEC's Circular relied upon by the appellant clarified the scope of another exemption notification and it cannot apply to this notification.....
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....ule 6(3) of the CCR 14. The appellant provided services in several parts of India including in Jammu and Kashmir through sub-contractors. The sub-contractors paid service tax and the appellant availed CENVAT credit of the service tax so paid as input service and in turn, paid service tax on the value of the service which it had provided. Service tax is levied under Chapter V of the Finance Act, 1994. Section 64 of this chapter reads as follows: SECTION 64. Extent, commencement and application -. (1) This Chapter extends to the whole of India except the State of Jammu and Kashmir. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. (3) It shall apply to taxable services provided on or after the commencement of this Chapter. 15. Undisputedly, since the charge of service tax did not apply to Jammu and Kashmir, no service tax was leviable on the services rendered in that State either by the appellant or by its sub-contractors. However, the sub-contractors of the appellant deposited an amount as service tax on such services erroneously and the appellant took credit of the amo....
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....as not service tax and there is no provision under the CCR to allow credit of any amount paid as service tax. If the amount was paid by the sub-contractor under the mistake of law or fact, it can claim refund of such an amount. Wrong availment of CENVAT credit of Rs. 13,45,364 19. This denial of CENVAT credit is for five reasons as follows: a) CENVAT Credit availed of the amount deposited by the sub-contractors towards service tax on the services which were rendered outside the taxable territory (in J&K) Rs. 3,02,408/- b) Input service bills were in the name of the registered or head office and not of the factory Rs. 1,28,471/- c) Invoices in the name of its Faridabad company but the address tampered with Rs. 3,24,931/- d) Invoices did not contain the Service Tax code of the service provider Rs. 1,70,097/- e) Original copies of the invoices were not available and credit taken on photocopies of invoices Rs. 4,19,457/- 20. Of the above, we have already held that CENVAT credit of an amount which is not service tax but erroneously deposited under mistake of law or fact is not service tax and credit of such an amount is not available....
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....the exchequer. The Commissioner has, in the impugned order, confirmed the demand of service tax invoking extended period of limitation on the same grounds. 23. We have considered the submissions on this issue. Since the appellant had not disclosed the facts which were found from the appellant's own records when audited and investigated and since the appellant has been a long established company, the presumption of wilful suppression of facts was drawn in the impugned order. We find no legal basis for such a presumption. The appellant is only required to disclose such facts as are required in the ST-3 returns. If these returns require aggregate values of say, services rendered and service tax paid, there is no scope for the appellant to disclose more facts which to the department in its returns. The scheme of the service tax law is clear. The appellant is required to self-assess service tax, pay it and file returns. The central excise officer with whom the return is filed is required to scrutinize it. If no return is filed but the return is filed and the self assessment is not done correctly, the officer can make his best judgment assessment under section 72 and raise a demand. F....