2017 (5) TMI 1299 - AT - Service Tax

Aviling CENVAT credit while availing the benefit of abatement under N/No. 1/2006-ST - Commercial or Industrial Construction Service - sub-contract - whether appellant have rightly availed CENVAT credit on the Bills of their Sub-contractors for service received under the Commercial or Industrial Construction Service (CICS) wherein they have approved the Bill of their Sub-contractor and paid the major part of it by retaining 10 per cent of the same towards security deposits/retention money? Held that - there is no dispute that the Sub-contractor of the appellant have paid the Service tax. The appellant have admittedly reversed the said amount of credit much before the issue of SCN and accordingly no SCN was required to be issued under the provisions of Section 73 of the Finance Act, 1994 - the appellant is entitled to abatement under the provisions of N/N. 1/2006-ST - appellant is entitled to take CENVAT credit of the amount of ₹ 1,07,28,250/-. Under the facts and circumstances, so far as the interest on ₹ 18,60,166/- is concerned, we hold that the same is not chargeable. The penalty is also set aside. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Availing Cenvat credit on Sub-contractors' bills for construction services
2. Allegations of mala-fide and suppression in availing service tax credit
3. Entitlement to abatement under Notification No. 1/2006-ST

Analysis:

Issue 1: Availing Cenvat credit on Sub-contractors' bills for construction services
The appellant, a construction company, availed Cenvat credit on bills of sub-contractors for services under the "Commercial or Industrial Construction Service." The dispute arose regarding the retention amount withheld as performance guarantee, leading to the question of entitlement to proportionate Cenvat credit of service tax. The Revenue contended that as the appellant retained 10% of sub-contractors' bills, they were not entitled to the credit. However, the appellant reversed the amount of Cenvat credit on being objected by the Revenue. The Tribunal held that the objection was not tenable as there was no service tax on the material component forming part of the retention money. The Tribunal allowed the appellant to take Cenvat credit of the amount in question, amounting to ?1,07,28,250.

Issue 2: Allegations of mala-fide and suppression in availing service tax credit
The Revenue alleged mala-fide and suppression on the part of the appellant in availing service tax credit of the full amount reflected in sub-contractors' bills. The appellant contended that they had reversed the credit much before the Show Cause Notice was issued, and thus, no further action was required under the Finance Act, 1994. The Tribunal found that the appellant had rightfully taken input service tax credit under the saving clause of Notification No. 2/2006-ST. The Tribunal held that the appellant was entitled to the credit and set aside the penalty imposed by the Revenue.

Issue 3: Entitlement to abatement under Notification No. 1/2006-ST
The appellant claimed entitlement to abatement under Notification No. 1/2006-ST for composite contracts, subject to conditions of not availing Cenvat credit of service tax. The Tribunal found that the appellant had inadvertently taken Cenvat credit on service tax paid, which was reversed promptly upon objection by the Revenue. The Tribunal held that the appellant was entitled to abatement under the said notification and set aside the demand for interest on the abated amount.

In conclusion, the Tribunal allowed the appeal, setting aside the Order-in-Original and granting the appellant consequential benefits. The Tribunal held in favor of the appellant on all issues raised, allowing them to avail the Cenvat credit, rejecting allegations of mala-fide, and confirming their entitlement to abatement under the relevant notification.