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TMI Blog2012 (3) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... vider shall not avail CENVAT Credit of excise duty paid on inputs and capital goods and Service Tax paid on input services - it is contended that the credit availed by the applicants after 1.3.2006 pertains to the input services received prior to 1.3.2006 and they have not availed any credit for input services received after 1.3.2006 - Held that :- When these input services were received by the applicant, there was no bar for availment of CENVAT Credit and has paid the amount for input services received by them prior to 1.3.2006 after introduction of the Notification No. 1/2006, therefore, they are entitled for CENVAT Credit - inputs services and utilize the same - it is undisputed that the applicant had taken Cenvat credit of the service t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The facts of the case are that the applicants are registered under the category of "Commercial or Industrial Construction Services" and filing their ST-3 return periodically by availing the benefit of Notification No. 15/2004 dated 10.9.2004 upto 1.3.2006 and thereafter Notification No. 1/2006 dated 1.3.2006. The Notification No. 1/2006 which was effected from 1.3.2006 provided for exemption from payment of Service Tax to the value which is in excess of 33% of the gross amount with the condition that service provider shall not avail CENVAT Credit of excise duty paid on inputs and capital goods and Service Tax paid on input services. This condition for non-availment of credit of Service Tax paid on input services was not provided in the ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on No. 1/2006. By availing credit, the applicants violated the basic condition of the above said Notification which stipulates that the Notification will not apply in the cases where CENVAT Credit of duty paid on inputs or capital goods or on input services used for providing such taxable services has been taken under the provisions of Cenvat Credit Rules, 2004. Therefore, there is no mechanism to correlate as to whether a credit of input services has been taken during the period of March 2006 to Sept 2006 pertains to input services actually availed prior to 1.3.2006 especially when the projects are running continuously. He further submitted that as per Annexure 10 to the memo of appeal, the applicants have estimated the demand of Service T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to 1.3.2006 when the Notification No. 1/2006 came into force. When these input services were received by the applicant, there was no bar for availment of CENVAT Credit. Moreover, in the case of input services, the credit was availed on payment of remuneration for the services during that period. As the claim of the applicants is that they have paid the amount for input services received by them prior to 1.3.2006 after introduction of the Notification No. 1/2006, therefore, they are entitled for CENVAT Credit. The identical issue came before this Tribunal in the case of B.G. Shirke (supra), wherein the Tribunal has observed as under:- "9. We find that the said Notification was issued from 1-3-2006. The earlier Notification No. 15/04-S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. It is also noted that the applicant has reversed the entire amount of credit of Rs.19.62 lakhs. 11. We are of the considered opinion that the issue in this case may be covered by the decision of the Hon'ble High Court of Allahabad in the case of Hello Minerals Water (P) Ltd (supra). An identical situation was also before the Hon'ble Supreme Court in the case of Chandrapur Magnet Wires (P) Ltd. v. CCE, Nagpur - 1996 (81) E.L.T. 3 (S.C). 12. In view of the fact that the applicant has already reversed the amount of Cenvat credit of the service tax on the inputs services, they have made out a prima facie case for the waiver of pre-deposit of the amount involved. Accordingly, the application for waiver of pre-deposit of the amount i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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