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TMI Blog2016 (12) TMI 1472X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax charged on the consideration paid for construction of roads to contractors of the appellant - appeal allowed - decided in favor of appellant-assessee. - ST/89299/2014 - A/88399/16/SMB - Dated:- 8-7-2016 - Shri C J Mathew, Member (Technical) Shri Sachin Chitnis, Advocate for the appellant Shri S.R. Nair, Enquiry Officer (AR) for the respondent ORDER The core of the dispute between M/s Kenersys India Pvt Ltd and Revenue in order-in-appeal No: PUN-EXCUS-003-APP-030-14-15 dated 20th June 2014 relates to availment of CENVAT credit on certain services engaged by them in the course of providing erection, commissioning and installation agency service to various clients. 2. M/s. Kenersys India Pvt Ltd specializes commissioning of wind operated electrical generators. Most of these project sites are located at remote places and on barren land that requires certain preparations before the structures can be erected. Among these are construction of roads. 3. M/s Kenersys India Pvt Ltd while executing these projects during 2008-07 to 2011-12, allegedly availed CENVAT credit of ₹ 455291/- against invoices raised by contractors assigned to construct thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n almost mechanical levy as equivalent to a complete assessment followed by the payment of the tax which constituted a valid levy . Hence it concluded that, there being a legally recognised levy, the only procedure open to the Collector for questioning its correctness was one contemplated by Rule 10 so that a demand for a short levy had to be made within 3 months of the final settlement of accounts as provided specifically by Rule 10. The Division Bench considered this procedure to be an alternative to an assessment under Rule 52 at the proper time and also to a provisional assessment in accordance with the procedure laid down in Rule 10-B. But, to regard the procedure under Rule 10 as an alternative to an assessment would be to over-look that it pre-supposes an assessment which could be reopened on specified grounds only within the period given there 20. The term levy appears to us to be wider in its import than the term assessment . It may include both imposition of a tax as well as assessment. The term imposition is generally used for the levy of a tax or duty by legislative provisions indicating the subject matter of the tax and the rates at which it has to be taxed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the appellant contends that as a user of the service determination of leviability of a tax was not their prerogative. That the liability to pay tax devolves on provider of taxable service who alone is accountable to the tax collecting authorities for due discharge of tax liability cannot be in doubt. In support of its contention of in competence to question tax liability, reliance was placed on the decision of this Tribunal in Newlight Hotels and Resorts Ltd v. Commissioner of Central Excise and Service Tax, Vadodara [2014-TIOL-2237-CESTAT-AHM] which rendered its findings on the basis of the decision of the Hon ble Supreme Court in Sarvesh Refractories (P) Ltd v. Commissioner of Central Excise Customs [2007 (218) ELT 488 (SC)] holding: 4. Heard both sides and perused the case records. The primary issue involved in the present proceedings argued by the appellant is whether or not duty determined and classification of services made at the service providers end can be charged by the authorities having jurisdiction over the service recipients end. Appellants have relied upon a series of case laws including those laid by the Apex Court as tabulated in Para 2 above. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 88 (S.C.), = 2007-TIOL-233-SC-CX the Tribunal was not justified in law in having reclassified the product under the heading 84.28. Learned Senior Standing Counsel for the appellant also contended that indisputable product for which MODVAT credit was claimed by the first respondent is called shovel loader and that as per the description found in heading 84.29 shovel loader is one of the items and that by no stretch of imagination it would fall under the heading 84.28 under which classification the items viz., on the other lifting, handling, loading or unloading machinery (for example lifts, escalators, conveyors, teleferies, are specified. Learned Senior Standing Counsel would therefore, contend that the order of the Tribunal is liable to be set aside. 5. As against the above submissions, Mr. C. Saravanan, learned counsel for the first respondent contended that even if the product shovel loaderis excluded item falling under 84.29, having regard to clause 5 in the table annexed to Rule 57-Q it can be brought under other accessories and as such when the first respondent has been using the said shovel loader in the first process of manufacture of glass in the factory premises, app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2000. Shovel loader is one of the specific product under the heading 84.29. In the table annexed to Rule 57-Q, clause 2, while all goods falling under Chapter 84 were held to be entitled for Modvat credit, specific exclusion in respect of the product falling under heading 84.29 to 84.37 had been made. Therefore, when the product falling under 84.29 had been specifically excluded for the purpose of availing MODVAT credit and the shovel loaderwas the product with reference to which the first respondent availed MODVAT credit, there was no scope for allowing such MODVAT Credit availed by the first respondent. The alternate contention of the first respondent by relying upon clause 5 of the table annexed to Rule 57-Q, is concerned, at the very outset, it will have to be stated that specific product in a specific description falling under specific heading having been specifically excluded for claiming MODVAT credit under Rule 57-Q read along with the table annexed to it, it will not be permissible for any authority much less, for this Court to countenance such a claim. 4.1 Hon ble Madras High Court while arriving at the above conclusion relied upon the judgment of Hon ble Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order of the Tribunal restoring the order of the authority-in-original is confirmed. 5. In view of the above interpretation of law made by the Courts, including the Apex Court, no option is left with the Revenue to change the classification/ assessments of the services at the service recipients end. The service tax paid by M/s. IHCL was at the behest of the department and was not altered during the disputed period. Credit of service tax paid on the invoices can not be denied or utilisation reduced on the grounds that classification of the services was wrongly done at the service providers end. Appeal filed by the appellant is thus required to be allowed on this ground alone. We have not considered the other issues raised by the appellant regarding utilisation of accumulated credit after 01.4.2008 or the time barred nature of the demands. 8. In view of the above, the leviability, or otherwise, of service tax on construction of roads having specific exclusion in the definition of commercial or industrial construction services in section 65(25b) of Finance Act, 1994 is beyond the scope of this appeal. That decision can follow only on a challenge to levy by the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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