2017 (1) TMI 927 - AT - Service Tax

CENVAT credit availed on input services polishing, grinding of marble floor etc. - denial of benefit of exemption on the ground that when appellant have availed credit on input services, they are not entitled to get benefit of notification no. 1/2006 (abatement) - credit availed on services specified u/r 6(5) of CCR on the ground the service provider has wrongly classified the services - Held that - the service tax for the input service has been discharged by the provider under the cleaning service which is not the listed service - the recipient of service is taking credit on such tax paid to the Government and it is not open to the recipient to reclassify the service when the tax has been paid already under a particular category by the provider of service. Neither the appellant nor the officers in the jurisdiction of the appellant have legal sanction to revise classification of service received, even if the said classification is thought to be made incorrectly by the provider of service - the invoices issued by the provider of service indicate that service tax registration under cleaning service though the description of service in the body of the invoice is indicated as marble maintenance - the classification and categorization of service cannot be changed at the end of the recipient - appeal dismissed - decided against appellant.

Summary

Issues:
1. Whether the appellant is eligible for exemption under Notification 01/2006-ST dated 01.03.2006 for services availed in connection with polishing and grinding of marble floor.
2. Whether the appellant can claim credit under a different classification to avail exemption under Notification 01/2006-ST.
3. Whether the appellant can reclassify the service received for tax purposes.

Analysis:
1. The appeal challenged an order by the Commissioner (Appeals) Delhi-IV regarding the appellant availing cenvat credit on services related to polishing and grinding of marble floor. The appellant claimed exemption under Notification 01/2006-ST dated 01.03.2006, but the revenue contended that exemption was not available due to the credit availed on input services, leading to a demand for service tax payment of ?30,02,974. The Commissioner (Appeals) upheld the demand and penalties imposed. The appellant argued that the nature of service should be determined based on the contract and invoice, not the service provider's classification for tax purposes.

2. The appellant asserted that they availed 'management, maintenance or repair service' for grinding and polishing marbles, which falls under Rule 6(5) of Cenvat Credit Rules, 2004. They argued that taking credit for such a service should not disqualify them from the exemption under Notification 01/2006-ST. The revenue contended that the service provider was registered for 'cleaning services' and paid tax under that category, making it impermissible for the appellant to claim credit under a different classification for exemption purposes. The Tribunal noted that the appellant took credit under 'management, maintenance or repair services' while the service provider paid tax under 'cleaning services,' which was not a listed service under the rules.

3. The Tribunal emphasized that the recipient cannot reclassify the service received for tax purposes if the provider has already paid tax under a specific category. It was deemed inappropriate for the appellant or jurisdictional officers to revise the service classification, even if the provider made an error. The correct approach would be to rectify the classification at the source. The invoices indicated service tax registration under 'cleaning service,' despite the service description mentioning 'marble maintenance.' The Tribunal concluded that the appellant cannot alter the service classification at their end and dismissed the appeal, upholding the lower authorities' decision.