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TMI Blog2018 (1) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... in relation to building or civil structure”. Regarding change of classification w.e.f. 16/06/2005, the Original Authority recorded that in most of the contracts, the appellant used the term maintenance and even if they have sometimes used the term “restorations” it is more akin to maintenance as the services were of continuous nature for maintaining properly in the hotel premises. It was observed that whatever terms were used in the agreements or contracts, the same were examined in the overall context to understand the scope of work before classifying the same under management or maintenance. CENVAT credit - payment of 6% / 8% on the value of exempted services - Rule 6 (3) (i) of the Cenvat Credit Rules, 2004 - Held that: the appellants have deposited the whole of Cenvat credit amounting to ₹ 2,97,310/- alongwith interest for delayed payment. As such, it should be considered that they have not availed such credit to attract the rigorous of Rule 6 (3) of Cenvat Credit Rules - the demand for the said amount for violation of Rule 6 (3) is not sustainable - penalty relevant to the said dispute is also liable to be set aside. Extended period of limitation - Held that: - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assifiable under maintenance or repair service/management maintenance or repair service by the specific description. The tax liability was accordingly fixed by the Revenue. 3. The learned Counsel appearing for the appellant contested the finding of the Original Authority. He mainly submitted on the following lines :- (a) the show cause notice was very vague. The services rendered by the appellants were not categorically identified for a particular tax entry to levy service tax. In fact, the Original Authority himself noted that the show cause notice proposed to cover the services under category of commercial or industrial construction service (or) under maintenance or repair service. The Revenue itself is not clear about the correct classification of service ; (b) the services provided by the appellant is mainly restoration and renovation of immovable property. These are with reference to building or civil structure which is used for commercial purpose or industry and accordingly the service will fall within the purview of construction service/ commercial or industrial construction service. Further the circular dated 27/07/2005 explaining the scope of maintenance or re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with reference to interpretation of legal provisions and accordingly there can be no justifiable reason for imposing penalties. 4. The learned AR contested the submissions of the appellant. He reiterated that the Original Authority examined elaborately the various contentions raised by the appellant at the time of initial adjudication itself. There is nothing new in the present grounds of appeal which were not examined and decided by the Original Authority. In fact various documents maintained by the appellant and the bills raised by them for receipt of consideration have been examined for a detailed finding. The nature of work in respect of various work orders have been examined and in fact these details were also illustratively listed in the impugned order itself. There is no merit in the present appeal on the question of classification of service as ordered by the Original Authority. 5. We have heard the learned AR and perused the appeal record. The main dispute in the present appeal is with reference to the correct taxable category of services provided by the appellant. The appellants have provided a variety of service which are essentially with reference to restoratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-ST dated 10.09.2004 on these services. On examination of the above invoices, it is seen that the assessable value charged by the notices included that value of materials used in providing such services, hence I find that the service provider was eligible to avail abatement of 67% under the Notification No. 15/2004-ST dated 10.09.2004 in respect of the services provided during this period. Further, I find that in their reply the notices had already admitted non-payment and replied that they had deposited the Service Tax along with interest for the demand raised for this period (hence not produced proof of payment thereof). As such, the notices had contravened the provisions of Section 65A, 67, 69 and 70 of the Finance Act, 1994 read with Rule 4, 6 and 7 of Service Tax Rules, 1994 and were liable to pay Service Tax of ₹ 83,818/- (Service Tax ₹ 82,175/- + Education Cess ₹ 1,643/-) on the assessable value of ₹ 24,90,146/- after availing abatement of 67% and the same is recoverable from them under the proviso to Section 73(1) of the Finance Act, 1994 and the remaining demand of Service Tax amounting to ₹ 1,70,177/- (Service Tax ₹ 1,66,840/- + Educat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir customers. I find that the notices were engaged in providing these services in relation to immovable properties of hotel industries including Trident Group of Hotels all over India and for other customers and such buildings were not under construction but were already under existence and business was running from these properties over a period. The notices were providing these services to the same customers on regular basis as per their requirement. The nature of services provided by the notices like Cleaning of Swimming Pool and Sealing thereafter, Honing by diamond pads and apply of sealant, Epoxy Coating and / or Biosan Wall Covering, Application of Paints on Constructed Areas, Bactericidal Coatings of Walls Sealing, Anti Skid Treatment, Deep Scrubbing and Rinsing by using cleaner, Roof Heat Insulation Coating Works and Restoration clearly indicate that they were provided for maintenance of buildings properties because from these activities no new construction emerged but these are required to keep the hotel properties or other business properties in a good condition. In their reply, the notices had already admitted that they were not providing these services in relation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion have been duly addressed by the Original Authority. There is no substantial or crucial aspect which was left un-addressed. On careful consideration of the above findings of the Original Authority, we are of the considered opinion that there is no factual or legal basis to interfere with the said findings. 9. The appellants contested the impugned order with reference to payment of 6% / 8% on the value of exempted services in terms of Rule 6 (3) (i) of the Cenvat Credit Rules, 2004. We note that the appellants have deposited the whole of Cenvat credit amounting to ₹ 2,97,310/- alongwith interest for delayed payment. As such, it should be considered that they have not availed such credit to attract the rigorous of Rule 6 (3) of Cenvat Credit Rules. The Hon ble Supreme Court in Chandrapur Magnet Wires (P) Ltd. 1996 (81) E.L.T. 3 (S.C.) held that when the disputed credit amount was reversed it should be construed that the said credit was not availed and benefit available on such non-availment should be extended. The said legal ratio has been followed in various decisions of the High Courts and this Tribunal. A reference can be made to a recent decision 2017 (47) S. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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