2012 (6) TMI 522 - AT - Service Tax

Denial of the benefit of Notification 1/2006 Dated 01.03.20062006 as the appellant has availed CENVAT credit - the appellant are engaged in providing construction services Held that - As the appellant has reversed the CENVAT credit availed by them, along with interest, same shall be interpreted as if appellant has not availed input service credit after introduction of notification 1/06 in favour of assessee. Availment of CENVAT credit on outward transportation services Held that - As decided in COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, BANGALORE Versus M/s ABB LTD. and others 2011 (3) TMI 248 (HC) that prior to 01.04.2008, the assessee is entitled to take CENVAT credit of outward transport agency service in favour of assessee.

Summary

Issues:
Appeal against demanding service tax and penalty under the Finance Act, 1994 for availing CENVAT credit on input services and outward transportation services in violation of Notification 1/2006.

Analysis:
The appellant, engaged in construction services, appealed against the demand for service tax and penalty amounting to about Rs.9.7 crores and Rs.10.82 lakhs, respectively, imposed under the Finance Act, 1994. The case revolved around the appellant availing the benefit of notifications 15/04 and 18/05, providing abatements on commercial and residential construction services. However, Notification 1/2006 altered the conditions for availing the abatement, specifically requiring non-availment of CENVAT credit on input/capital goods. Scrutiny revealed the appellant had indeed availed CENVAT credit on input services post-01.03.2006, leading to a show-cause notice for denial of Notification 1/2006 benefits.

The appellant contended that the CENVAT credit taken post-01.03.2006 was for services received before that date and utilized for service tax payments pre-01.03.2006, thus not violating Notification 1/2006. Citing relevant case laws, the appellant argued against the denial of abatement. Additionally, the issue of CENVAT credit on outward transportation services was raised, referencing a Karnataka High Court decision supporting the appellant's position. The appellant also highlighted the reversal of CENVAT credit and interest payment post-show-cause notice as a gesture of compliance.

The Respondent argued for a strict interpretation of Notification 1/2006, emphasizing the inadmissibility of CENVAT credit post-01.03.2006. After detailed hearings, the Tribunal acknowledged the appellant's reversal of CENVAT credit with interest, indicating a good faith belief in entitlement to the credit pre-Notification 1/2006. Consequently, penalties were deemed inapplicable under the circumstances.

Drawing parallels with a Supreme Court decision, the Tribunal interpreted the reversal of CENVAT credit as non-availing of credit post-Notification 1/2006. The impugned order was set aside, with a condition barring the appellant from claiming a refund of the reversed amount with interest. Furthermore, the Tribunal recognized the settled issue of CENVAT credit on outward transportation services per the Karnataka High Court's ruling, granting the appellant entitlement to such credit.

In conclusion, the appeal was disposed of based on the observations made, providing relief to the appellant on both issues of CENVAT credit availed on input services and outward transportation services.