2018 (1) TMI 1215 - AT - Service Tax

CENVAT credit - input services - rent-a-cab operator service - health club and fitness centre service - internet cafi service - dry cleaning service - Held that - Rule 6 (5) as it stood during the relevant period states that credit is eligible on the services specified therein, if such services are not used exclusively for exempted services. Even if we consider that prior to 01.05.2011, the output services of short term accommodation services and restaurant services were not taxable services, the appellants were rendering other taxable services like health club and fitness service, internet cafi service etc. Since the services specified in Rule 6 (5) were not used by the appellant exclusively for non-taxable services, the appellants are eligible for the credit. Abatement under N/N. 1/2006-ST - Held that - The N/N. 1/2006-ST does not say that assessee cannot avail any credit at all. The condition is that the abatement would be available only if input service credit is not availed on input services used for providing such services specified in column 2 of the notification - In the case of Bharat Heavy Electrical Ltd. Vs. CCE, Nagpur 2012 (4) TMI 197 - CESTAT, MUMBAI , the Tribunal had occasion to analyse a similar issue with regard to availability of abatement and held that there is no stipulation in the notification that the option to avail/non-avail CENVAT credit has to be exercised uniformly in respect of all the contracts executed by the assessee. It is for the assessee to choose which formulation he wants to follow in a given contract. Demand set aside - appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Wrong availment of Cenvat credit.
2. Wrong availment of abatement under Notification No. 1/2006-ST.
3. Demand on Convention services.

Detailed Analysis:

1. Wrong Availment of Cenvat Credit:
The appellants, running a 4-star hotel, availed Cenvat credit on various input services used for constructing the hotel building, such as services from civil contractors, architects, and project management services. The department alleged that the appellants wrongly availed Cenvat credit on these construction services, arguing that the input services were used for both taxable and exempted services. The appellants contended that Rule 6(5) of the Cenvat Credit Rules (CCR) allowed them to avail input service credit for common input services not exclusively used for exempted services. The Tribunal found merit in the appellants' argument, noting that they rendered taxable services like cab operator’s service, health club, fitness center service, internet café service, and dry cleaning service from the constructed premises. The Tribunal concluded that since the services specified in Rule 6(5) were not used exclusively for non-taxable services, the appellants were eligible for the credit. The decision was supported by precedents from cases like Asia Pacific Hotels Ltd. and Tidel Park Ltd., which emphasized the broad interpretation of the Cenvat Credit Rules to fulfill their objective.

2. Wrong Availment of Abatement under Notification No. 1/2006-ST:
The second issue involved the appellants' eligibility for abatement under Notification No. 1/2006-ST during the period May 2011 to March 2012. The department argued that the appellants were ineligible for abatement because they availed Cenvat credit on input services. The appellants countered that the notification only restricted credit on input services used for providing the specific taxable services mentioned in the notification. The Tribunal agreed with the appellants, stating that the condition in the notification did not prohibit availing Cenvat credit on all services but only on those used for the specified services. The Tribunal referenced the appellants' own case in the Hyderabad Tribunal and the Gujarat High Court’s decision in Mundra Ports and Special Economic Zone Ltd., which supported the appellants' interpretation. The Tribunal concluded that the appellants had not availed any credit on input services used for providing short-term accommodation and restaurant services during the disputed period, thus making them eligible for abatement.

3. Demand on Convention Services:
The appellants did not contest the demand of ?67,075/- on Convention services, and thus, this part of the demand was not disturbed by the Tribunal.

Conclusion:
The Tribunal set aside the impugned order regarding the wrong availment of Cenvat credit and abatement, allowing the appeal in favor of the appellants. The demand on Convention services remained undisturbed. The judgment emphasized the correct interpretation and application of the Cenvat Credit Rules and the conditions under Notification No. 1/2006-ST, aligning with the broader objectives of the Cenvat Credit Rules and the precedents set by higher judicial authorities.