TaxTMI 
TaxTMI 
2024 (9) TMI 319
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....he benefit of Notification No. 26/2012 dated 20.06.2012 in respect of construction of a complex, building, civil structure or part thereof intended for sale to a buyer. The Appellant paid the Mobilization advance of Rs. 15.618 Crore (Including Service tax of Rs. 0.618 Crore) to M/s Ajnara Infrastructure Pvt. Ltd. & Mobilization advances of Rs. 15.618 Crore (Including Service tax of Rs. 0.618 Crore) to M/s Straight Edge Contracts Pvt. Ltd. The appellant adjusted the part of mobilization advances against the invoice issued on or after July 2012 by the above mentioned 2 contractors & availed the credit of service tax on such mobilization advance. 2.1 Consequent to the audit for the period 2012-13 to 2014-15, show cause notice dated 19.10.2015 was issued to the appellant wherein the department raised the following demands:- a) Availment and utilization of Cenvat credit on Service tax paid on mobilization advance during the year 2010-11. Similarly in some cases, Cenvat credit has been availed and utilized for service tax on those input services which pertained upto June 2012 which resulted into inadmissible availment and utilization of Cenvat credit of Rs. 91,01,452/- ....
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....use notice must be able to demonstrate intention to evade payment of Service Tax on the part of the assessee, i.e. a conscious act to evade tax, for instance, deliberate non- disclosure of some bills pertaining to any particular service rendered by the assessee or of the assessee withholds information in spite of requisition to provide the same, with intent of evading service tax. In support of his submission, the appellant has relied on the judgement in the case of Naresh Kumar & Co. (P) Ltd. V. Union of India (2015) 37 STR 451). 3.2 The appellant has further submitted that the impugned service remained subject to litigation from 2010 to 2017. Therefore, the extended period of limitation cannot be invoked due to confusion prevailing in the industry as well as judiciary during impugned period. * Maharashtra Chamber of Housing Industry and another Versus Union of India and others- Bombay HC * Suresh Kumar Bansal vs. Union of India (2016) 70-taxmann.com 55 (Delhi)-Delhi High Court * Retrospective amendment w.e.f. 01.07.2010 made in service tax law vide following Act 2017 3.3 The appellant has also submitted that impugned service is eligible input s....
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.... the findings in the impugned order and submitted that the scope of definition of "input service" as enumerated under Rule 2(l) of Cenvat Credit Rules, 2004, does not cover the services specified under Commercial or Industrial Construction services, Construction of Complex services and Works Contract services so far as the same are used for construction of a building or a civil structure or a part thereof for the period upto 30.06.2012. 4.1 Further, the Learned AR submitted that for the period 01.07.2012 onwards, the scope of input service definition excludes service portion in the execution of a works contract and construction services including service listed under clause (b) of section 66E of the Finance Act in so far as they are used for construction or execution of works contract of a building or a civil structure or a part thereof. Hence, the Constructions service as well as Work Contract Service has been tested as a declared service but the same has been specifically excluded as 'input service' as per Rule 2(1) of CENVAT credit Rules 2004. Hence the service provided by the contractors to the assessee do not qualify as input service and is inadmissible for availmen....
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.... India And Ors Vs. M/s Travelite (India) [2014 (12) TMI 1099 - SUPREME COURT] granted stay on the operation of the Hon'ble Delhi High Court judgment. In view of the same, we find no merit in the contention of the appellant. 5.2 It has been submitted by the appellant that they had availed the 'works contract services' for the construction of the multi-storeyed housing complex from M/s Straight Edge Contractors Pvt. Ltd. and M/s Ajnara Infrastructure Pvt. Ltd. from July 2012 onwards. This service was used for providing output services of 'Construction of Complex Services'. For the purpose of Construction, the appellant had paid Mobilization Advance of Rs. 15.618 Crores each to both the companies during the year 2010-11. They started claiming Cenvat credit on input services received, with effect from 1.7.2012. The mobilization advance was adjusted against the bills raised by the contractors w.e.f. 1.7.2012 and such services of 'Works Contractor', received by the assessee, fall under the purview of input services defined under Rule 2(I) of CCR, 2004. We note that the admissibility of Cenvat credit on input services is governed by Rule 2(l) of Cenvat Credit Rules, 2004 to March 15 wh....
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....rvice tax paid by the service providers on such mobilization advance received towards rendition of such construction services, would not qualify to be eligible as Cenvat credit, as the services so received are not eligible 'input services' in terms of the provisions of Rule 2(l) of Cenvat Credit Rules, 2004. In this context, we also note that the question of taxability on mobilization advances has been well settled and in the case of M/s GJF Construction Company Limited vs. CCE, Hyderabad and in the case of Thermax Instrumental Limited vs. CCE, the Tribunal held that mobilization advance received by the assessee is not chargeable to service tax, if it is in the nature of an advance. In view of the same, we hold that the appellant was not entitled to take credit of service tax paid on such mobilisation advances. Consequently, we uphold the demand confirmed in the impugned order. 5.4 We now address the submissions of the appellant in respect of the confirmation of interest under Rule 14 of the Cenvat Credit Rules, 2004. In the instant case, we find that there was no service tax liability on such mobilisation advances. Therefore, the credit taken on such tax paid was not admissible....
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....utilized the Cenvat Credit. It is in those circumstances the Tribunal was justified in holding that when the assessee has not taken the benefit of the Cenvat credit, there is no liability to pay interest. Before it can be taken, it had been reversed. In other words, once the entry was reversed, it is as if that the Cenvat credit was not available. Therefore, the said judgment of the Apex Court has no application to the facts of this case. It is only when the assessee had taken the credit, in other words by taking such credit, if he had not paid the duty which is legally due to the Government, the Government would have sustained loss to that extent. Then the liability to pay interest from the date the amount became due arises under Section 11AB, in order to compensate the Government which was deprived of the duty on the date it became due. Without the liability to pay duty, the liability to pay interest would not arise. The liability to pay interest would arise only when the duty is not paid on the due date. If duty is not payable, the liability to pay interest would not arise." ( emphasis supplied ) 5.6 We also note that the Hon'ble High Court has held that mere wrong a....
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....sh with supporting evidence the existence of factors indicating wilful misstatement, suppression of facts, etc., which should be a positive act of the appellant. The particulars which form the basis of demand were all recorded and maintained in the books of the appellant." 5.8 We also take note of the decisions of the Principal Bench, New Delhi in the case of Amway India Enterprises Pvt Ltd., vs Commissioner of C.Ex, New Delhi [2017(3) GSTL 69(Tri.Del)] wherein it was held as follows:- 10. On a collective reading of the decisions cited by both the counsels, it is clear that the consistent position of law with regard to applicability of the proviso to Section 73(1)/Section 11A ibid has been that suppression cannot be established where material facts were within the knowledge of the Revenue. Accordingly, where there is no suppression, the pre-condition for applicability of proviso to Section 73(1) cannot be said to be met and hence, extended period of limitation contemplated therein cannot be invoked. On the contrary, where the ingredients for invoking proviso to Section 73(1) are established or admitted and thus the pre-conditions for applicability of such proviso stands....