TaxTMI 
TaxTMI 
2025 (11) TMI 952
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....sallow the cenvat credit of Rs.93,41,381/- (Rs. Ninety Three Lacs Forty One Thousand Three Hundred Eighty One only) and order for recovery of same along with interem at appropriate rate under Rule 14 of the CENVAT Credit Rules, 2004 read with Section 73 of the Act. 3. I drop the demand of Rs. 1,06,59,734/- (Rs.One Crore Six Lakhs Fifty Nine Thousand Seven Hundred Thirty Four only) in respect of service provided to UPRNNL. 4. I confirm the demand of service tax Rs. 30,34,350/-(Ra. Thirty La Thirty Four Thousand Three Hundred Fifty only) on earth excavation service provided by the party, under Section 73 of the Finance Act, 1994 alongwith interest at appropriate rate under Section 75 ibid. 5. I impose a penalty of Rs. Rs. 30,34,350/ (Rs. Thirty Lacs Thirty Four Three Hundred Fifty only) under Section 78 of the Finance Act'1994. 6. I also impose penalty of Rs. 93,41,381/ [Rs: Ninety Three Lacs Forty One Thousand Three Hundred Eighty One only) under Rule 15 of CENVAT Credit Rules 2004 read with Section 78/ of the Finance Act, 1994." 2.1 Appellant is registered with the department under registration No.AWJPS7676RSD002 for its two business premi....
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....a learned Authorised Representative appearing for the revenue. 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 From the impugned order, it is evident that only two demands have been confirmed against the appellant- (i) Demand of Rs.30,34,350/- in respect of Earth Excavation Services provided by the appellant; (ii) Cenvat Credit of Rs.93,41,381/- which is in admissible to the appellant. 4.3 For confirming the above demands, impugned order records the findings as follows:- "14. ADMISSIBILITY OF CENVAT CREDIT (Rs.93,41,381/as per Annexure-II of SCN) ON INPUT SERVICES 14.1 It has been alleged in the show cause that party had taken und utilized credit on Capital Goods and Input service in terms of notifications No. 26/2012 ST dated 20.06.2012. The party had sub-contracted its civil construction works to various contractors and have availed credit of service tax amount as input service credit on the basis of invoices, issued by there contractors. The details of input service credit taken by the party were given vide their letter dated 23.11.2016. It has been alleged in....
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.... service under 66E clause (b). The party has failed to substantiate that the credit in their case is not barred by the said exclusion clause and prima facie it is clear that the party has wrongly taken credit of service portion in works contract in, contravention of provision of Rule 2(l) amounting to Rs.93,41,381/-which is not admissible to them and the same is recoverable alongwith interest from them under Rule 14 of CENVAT Credit Rules 2004." 15. -------------------------- 16. DEMAND OF SERVICE TAX ON SITE FORMATION SERVICES:-(Re 30,34,350/-as per Annexure-IV) 16.1 Show cause notice has alleged that the party has received an amount of Rs. 2,45,45,758/- for Earth excavation during the year 2014-15, which indicates that party had also performed Earth excavation activity. This activity has been specifically covered under the Site formations and clearance excavation and earthmoving, and demolition services hi the Section of the Finance Act, 1004. 16.2 It is alleged that this amount was not declared in the service tax returns filed by the party and they did not pay service tax on the same. The party in their defence has not disputed liability on th....
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....eturns not submitted to department. So the issue of wrong availment of credit was unearthed only during the inquiry / investigation in the instant case. Hence the above facts were suppressed from the department to evade payment of service tax in contravention provisions of law in force. As such the extended period under Section 73 (1) of the Finance Act 1994 and Rule 14 of the CENVAT Credit Rules 2004 read with Section 11A of the Central Excise Act'1944 is applicable to the instant case. 19. The party has not declared the value of Taxable services in ST-A returns and have not assessed and paid the proper service tax, therefore they have contravened the provisions of Section of the Act rend with Rita Service tax Rules 1994, section 70 read with Rule 7 ibid. Further by availing and utilizing inadmissible credit on inadmissible input services of CENVAT Credit they have contravened the provisions of Rule 3 Rules, 2004 read with Rule 2(1) ibid. I observe that in the instant case ingredients of wilful suppression of facts with intent to evade payment of service tax alongwith contravention of provisions of Finance Act and Rules made thereunder with intent to evade payment of ....
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.... contract of a building or a civil structure or a part thereof, or for (b) for laying of foundation or making of structure for support of capital goods, except for the provision of one or more of the specified service. The above exclusion is applicable except where assessee itself provides one or more of the specified services. Moreover, the credit taken relates to credit of input service and capital goods only, therefore is not covered by exclusion clause of Rule 2(l) of CENVAT credit Rules, 2004. They relied upon the decision of this Tribunal in the case of M/s Shanti Construction Co. Vs CCE & ST, Rajkot 2021 (54) GSTL 164 (Tribunal). 4.10 For ease of reference, we are reproducing the exclusion clause of the definition of input services as per Rule 2(l) of the Cenvat Credit Rules, 2004 below:- "(A) 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- (a) construction or execution of works contract of a building or a civil structure or a part thereof, or (b) laying of foundation or making of structures for support of ca....
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....e service tax was discharged under the classification of works contract. The individual services may be classifiable under various head but when the service provider has opted to classify the service under works contract service and discharged the service tax liability as per the rate applicable to the works contract service, at the recipient and classification cannot be disputed. The works contract service is itself not a particular service but it covers bunch of various services. It is only in accordance with the classification and mode of payment the bunch of various services where the material is also involved, the services are classifiable as works contract service. No doubt if the service providers classify the individual service separately and discharged the service tax in accordance with the classification of individual service such as renovation and modernization, it will be covered under the inclusion clause under the definition of input services. However, if the similar services are provided by the service provider as 'works contract service' and discharged the service tax liability under the said head, then it will be covered under the exclusion clause of the input serv....
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.... of the expressed provisions of Rule 2(l) of Cenvat Credit Rules, 2004. As we also hold that extended period has been rightly invoked penalties to this extent imposed under Rule 15 of Cenvat Credit Rules, 2004 read with Section 78 of the Finance Act, 1994 is also justified. 4.17 Summarizing the findings:- (i) Demand of Rs.30,34,350/- in respect of Earth Excavation Services provided by the appellant along with the penalties of the same amount imposed under Section 78 of the Finance Act is set aside. (ii) Demand of Rs.93,41,381/- in respect of inadmissible Cenvat credit availed by the appellant along with penalty of same amount imposed under Rule 15 of Cenvat Credit Rules, 2004 read with Section 78 of the Finance Act, 1994 is upheld. 5.1 Appeal is partially allowed as indicated in para 4.17 above. (Order pronounced in open court on-13 November, 2025) ============= Document 1 Annexw.A Yogesh Agarwal & Co. CHARTERED ACCOUNTANTS Office /Resi. : Zila Parishad Road. Civil Lines, Rampur-244901 (U.P.) PH: 0595-2351620 (0), 2351280 (R) Mob .: 9412151559 UDIN :- 24075337BKAVIR4493 To, Central Excise & Service Tax Appellate Tribunal Allahabad ....
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....919104 B. TAX LIABILITY ON SIX BILLS OF SALE OF EARTH EXCAVATION AS PER SCHEDULE (J) 1 |Sale of earth excavation 24549758 2 Value of three bills with abetment 5178918 Bills dated 27th July, 17th Nov and 26th Mar 3 Taxability of Abhilasha (50%) 2589459 Tax liability of proprietor firm 4 Less allowable abetment (60%) 1553675 Abetment on original works 5 Net taxable value of three bills 1035784 Bills dated 8th Dec, 12th Feb & 17th March 6 Value of other three bills 19370841|without abetment 7 Net taxable value of other three bills 19370841|without abetment 8 Total taxable value earth excavation 20406625 (Total of value at S. No. 5 & 7) TOTAL TAXABLE VALUE OF WORK CONTRACT & EARTH EXCAVATION AS PER SCHEDULE "" 1 Total taxable value 147325729 Total of A.4 and B.8 2|Service Tax payable 12% 17679087 3 Education Cess 2% of S. Tax 353582 4 Higher Education Cess 1% of E Cess 176791 5 Total taxable payable 18209460 6 Total tax paid by Abhilasha 19247940 Document 2 GEXCOM/TECH/00/1/2021-REV-0/0 Pr COMMR-COST-MEERUT 122585229/2025 कारà¥à¤¯à¤¾à¤²à¤¯ पà¥à¤°à¤§à¤¾à¤¨ आयà¥....