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TMI Blog2009 (6) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... of ST3 return for the period April, 2006 to September, 2006, it is observed that the appellant availed Cenvat credit of service tax paid on input services and the same was utilized for payment of service tax on taxable service and also availed abatement simultaneously under Notification No. 1/06 ST, dated 1-3-2006; that the abatement under the said notification is available provided that the appellant did not avail Cenvat credit of duty on inputs or capital goods or Cenvat credit of service tax on input services and also the appellant had not availed the benefit of notification No. 12/2003 ST, dated 20-6-2003 and in the instant case, as the appellant has availed Cenvat credit facility, the appellant is not eligible for abatement under Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der and not to individual services; (iv) that the said notification exempts taxable service as listed in the Notification and allows separate abatement to each of such services provided by the service provider; (v) that the appellant provides two different services viz. commercial or industrial construction service and construction of residential complex services and these two services are also entitled for separate abatement and they are independent of each other and the notification also grants abatement to each service separately; (vi) that the respondent has not appreciated above legal position and wrongly denied the abatement for construction of residential complex service on the pretext that the appellant has availed cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Consultant, duly authorized by the appellant appeared before me along with Shri S. M. Bokil, Accountant of the appellant company at 02.30 PM. None-appeared from Department s side, despite intimation. During the hearing, in addition to reiterating the submissions made in the appeal memorandum, Shri Godse also filed a written submission, according to which, he emphasized that his client is entitled to avail exemption notification separately both for commercial or industrial construction services and residential construction service and hence there is no violation on the part of his client. 4. I have gone through the case records including record of PH carefully. After waiving pre-deposit, I take the main appeal for final decision. Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailed Cenvat credit facility in respect commercial or industrial construction service , though the appellant is legally entitled for and though the appellant subsequently paid back the same along with interest, is not correct; that the appellant further claims that the exemption notification i.e. abatement notification No. 1/06 is available to each service and thus, clubbing of two services for extending benefit of abatement is not legally correct; that the appellant further claims that in view of the decisions mentioned at para 2(viii) supra, the Cenvat credit availed for one service will not have any impact for denying Cenvat credit for other service. 4.2 The facts of availment of Cenvat credit by the appellant in respect commercial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest in respect of commercial or industrial construction service . The fact of abatement and paying back the same was also acknowledged by the Assistant Commissioner in his own findings. Despite the above, how he has confirmed the service tax along with interest, besides imposition of equal penalty is the question which would surprise everyone. In addition to the above, there is no dispute that the appellant has not availed any credit facility in respect of construction of residential complex service and the only benefit, the appellant has availed is the abatement which fact is also not under dispute. 4.3 Coming to the legal aspect that whether the availment of Cenvat credit in respect of one service can have the impact on the other s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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