2021 (7) TMI 1001 - AT - Service Tax

Benefit of abatement of 76% under N/N. 01/2006-S.T., 21/97-S.T., 39/97-S.T., 40/97-S.T., 12/2001-S.T., 8/2003-S.T., 12/2003-S.T., 18/2003-S.T., 19/2003-S.T., 2/2004-S.T., 9/2004-S.T. and 10/2004-S.T. - appellant had availed the Cenvat credit in respect of GTA Service - HELD THAT - The same issue for previous period in the appellant s own case came before this Tribunal in M/S NJ DEVANI BUILDERS PVT. LTD VERSUS C.S.T. S.T. -AHMEDABAD 2019 (6) TMI 213 - CESTAT AHMEDABAD and this Tribunal has held that the appellant is entitled for the abatement Exemption Notification subject to reversal of Cenvat Credit. This very order was challenged before the Hon ble High Court in MESSRS NJ DEVANI BUILDERS PVT. LTD VERSUS UNION OF INDIA 2020 (11) TMI 798 - GUJARAT HIGH COURT wherein the Hon ble Gujarat High Court set aside the Tribunal s order as well as the Show Cause Notice raising the demand on the ground that the service falls under works contract service and demand was raised under Commercial or industrial construction service. Considering the judgment passed by Hon ble High Court since the same issue involved in the present case and there is only difference of period, the ratio of the Hon ble High Court Judgment is squarely applicable in the present case - demand set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Denial of abatement of 76% due to availing Cenvat credit in respect of GTA service.
2. Applicability of earlier Tribunal and High Court decisions on the present case.
3. Entitlement to exemption under various Notifications.

Analysis:
The case involved the appellant providing Commercial or Industrial Construction Service and availing exemption under various Notifications for abatement of 76% from the gross value of the construction service. The issue arose when the department denied the exemption and demanded differential duty, contending that since the appellant availed Cenvat credit for GTA service, they were not entitled to the abatement. The appellant argued that a previous Tribunal order had remanded the matter for entitlement to the benefit of the Notification upon reversal of Cenvat credit, and this order was upheld by the High Court in a related case. The Revenue representative reiterated the findings of the Impugned Order, emphasizing that when the outward service is not liable to service tax, Cenvat credit for Input Service is not permissible.

Upon careful consideration, the Tribunal noted that the issue revolved around the denial of abatement due to availing Cenvat credit for Input Service. Referring to a previous Tribunal decision and the subsequent High Court judgment, which set aside the Tribunal's order and the demand raised, the Tribunal found that the same issue and legal principles applied in the present case. Given the similarity in issues and the applicability of the High Court judgment, the Tribunal ruled in favor of the appellant, setting aside the demand and the impugned order. Consequently, the appeal was allowed, aligning with the precedent set by the High Court judgment dated 12.03.2020.

This comprehensive analysis of the judgment highlights the key legal issues, arguments presented by both parties, and the Tribunal's decision based on the precedents and legal principles established in previous cases.