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2021 (2) TMI 157 - AT - Service TaxCENVAT Credit - service tax received from the sub-contractors - service tax paid by the appellant on import of services under reverse charge mechanism for period prior to April 18, 2006. CENVAT Credit - service tax received from the sub-contractors - HELD THAT - Larger Bench of the Tribunal in COMMISSIONER OF SERVICE TAX VERSUS MELANGE DEVELOPERS PVT. LTD. 2019 (6) TMI 518 - CESTAT NEW DELHI also observed that a sub-contractor renders a taxable service to a main contractor - thus, it has to be held that the Commissioner was not justified in denying CENVAT Credit to the appellant on the services received from the sub-contractor. CENVAT credit - service tax paid by the appellant on import of service under a reverse charge mechanism for the period prior to April 18, 2006 - HELD THAT - In view of the decision of the Tribunal in ADITYA BIRLA NUVO LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, LTU MUMBAI 2016 (3) TMI 619 - CESTAT MUMBAI , it has to be held that the Commissioner was not justified in denying CENVAT credit on the service tax paid by the appellant on import of services for the period prior to April 18, 2006. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Whether services provided by the sub-contractors qualify as input services for the Appellant and thus, CENVAT Credit is admissible on the invoice of the sub-contractors or not? 2. Whether Appellant is eligible for CENVAT Credit on service tax paid by on import of services under reverse charge mechanism for period prior to April 18, 2006? Issue-wise Detailed Analysis: Issue 1: Sub-Contractors' Services as Input Services The appellant contested the denial of CENVAT Credit on services received from sub-contractors, arguing that these services qualify as "input services." The appellant relied on a previous order dated January 08, 2018, passed by the Commissioner, Rohtak, which recognized the services provided by sub-contractors as input services for a subsequent period (2014-15). Additionally, the appellant referenced an order dated August 24, 2018, by the Tribunal in Service Tax Appeal No. 53011/2015 for the period 2012-13, which supported their claim. The Department's Authorized Representative supported the Commissioner's findings, which were based on the Master Circular dated August 23, 2007. The Circular clarified that services provided by sub-contractors are taxable and qualify as input services. However, the Commissioner denied the benefit of the Circular, asserting it only applied when part of the work was outsourced, whereas the appellant's case involved the whole work being performed by sub-contractors. The Tribunal found the Commissioner's observation factually incorrect, noting that the agreement indicated only a part of the work was assigned to sub-contractors. The Tribunal also emphasized that the Circular should not be restricted to cases where only part of the work is outsourced. The Tribunal cited a Larger Bench decision in Commissioner of Service Tax vs. Melange Developers (P) Ltd., which affirmed that sub-contractors render taxable services and the main contractor can avail CENVAT Credit under the Cenvat Rules. In conclusion, the Tribunal held that the Commissioner was not justified in denying CENVAT Credit on services received from sub-contractors. Issue 2: CENVAT Credit on Service Tax Paid on Import of Services (Pre-April 18, 2006) The appellant also challenged the denial of CENVAT Credit on service tax paid on import of services under the reverse charge mechanism for the period prior to April 18, 2006. The Commissioner had disallowed this credit based on Rule 3(1)(ixa) of the Cenvat Credit Rules, 2004, which was inserted by the Finance Act, 2011, effective from April 18, 2006. The appellant relied on decisions from the Tribunal in Commissioner of Central Excise and Service Tax vs. 3M India Ltd. and Aditya Birla NOVO Ltd. vs. Commissioner of Central Excise, LTU, Mumbai. In 3M India Ltd., the Tribunal held that the assessee was entitled to CENVAT Credit despite the service tax liability on imported services coming into effect only from April 18, 2006. Similarly, in Aditya Birla NUVO Ltd., the Tribunal clarified that Section 66A is not a charging section but a deeming provision, and credit should be allowed if the services are in the nature of input services. The Tribunal concluded that the Commissioner was not justified in denying CENVAT Credit on service tax paid by the appellant on import of services for the period prior to April 18, 2006. Final Judgment: The Tribunal set aside the order dated July 31, 2014, passed by the Commissioner to the extent it denied CENVAT Credit on services received from sub-contractors and on service tax paid on import of services under the reverse charge mechanism prior to April 18, 2006. The appeal was allowed to the extent indicated.
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