Option to choose exemption under notification no. 1/2006 or under notification no. 12/2003 of Service Tax

In the instant case, the appellant was engaged in Erection, Commissioning or Installation. Erection services were brought into tax net with effect from 16-6-2005 vide Finance Act, 2005. Department raised the demand of service tax on the erection activity with effect from 1-7-2003. Further, since the nature of contract was composite, while raising the demand, department has grated exemption under notification no. 19/2003 dated 21-8-2003 (now the corresponding notification to this notification is 1/2006 dated 1-3-2006 Service Tax). Department also denied the cenvat credit of Input services used in providing output services.

Appellant contended that:

1. Since the service of Erection became taxable with effect from 16-6-2005, the demand prior to that should be disallowed.

2. Exemption under notification no. 12/2003 dated 20-6-2003, Service Tax, should be allowed.

3. Credit of Cenvat Credit on Input Services used for providing Erection services should be allowed while granting exemption under notification no. 12/2003.

In addition to above, the appellant has also contested, as an alternative argument, that since the service of works contract was brought into tax net with effect from 1-6-2007, entire demand may be dropped.  But, tribunal did not answer this argument.

However, honorable tribunal has accepted all the three arguments of the appellant and allowed the appeal.

From the decision, it may be concluded that when two or more exemption notifications are available under service tax, it is upon the assessee to choose any one exemption notification which is more beneficial to him. Department can not force him to avail the benefit of a particular exemption notification. 

(For full text of judgment - visit 2008 -TMI - 3714 - CESTAT, BANGALORE)