9911796707
TMI Blog2018 (7) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... falling under Chapter 26 of the first Schedule to the Central Excise Tariff Act, 1985 and holder of Central Excise registration. They have been awarded contract of various companies for errection, installation, commissioning, works etc. in relation to various projects. Their agreement provided that certain percentage of the stipulated payment would be withheld on account of performance guarantee. This payment would be made at the end of stipulated period after the successful execution of the contract. Therefore, from each of the progressive bills raised by the contractors during the execution of the contract, the respondents used to deduct certain percentage as retention amount and made the balance payment to the contractors. However, it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Period involved Demand confirmed and penalty imposed 1 17-19/CE/UDR/ 2014-JC dated 18.12.2014 August 2012 to March, 2013 Rs.6,42,717/- Rs. 1,60,000/- 2 17-19/CE/ UDR/ 2014-JC dated 18.12.2014 July 2013 to March, 2014 Rs.26,61,490/- Rs. 6,50,000/- 3 16/CE/UDR/ 2015-ADC dated 22.9.2015 October 2012 to March, 2013 Rs.15,31,226/- Rs. 1,50,000/- 5. Being aggrieved the respondent filed the appeals before the Commissioner (Appeals) and the learned Commissioner (Appeals) vide impugned order dated 25.1.2018 set aside the orders in original and allowed the appeal filed by the respondents. 6. I have heard the learned AR for the appellant-Revenue and learned Counsel for the respondent-assessee and perused the record. The entire case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oiced amount on account of discount agreed upon after issuance of invoice; or deducts certain amount due to unsatisfactory service; or withholds some amount as security to be held during contract period. Due to these reasons the value paid may not tally with the amount indicated in the invoice, bill or challan. In such cases the department has raised objections to the taking of credit as it does not meet the requirement of the said sub-rule (7). 4. Thus, the following issues relating to availment of CENVAT credit need clarification, Whether Cenvat Credit can be claimed (a) when payments are made through debit /credit notes and debit / credit entries in books of account or by any other mode as mentioned in section 67 Explanation (c) fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t towards the provision of service. The mere fact that finally settled amount is less than the amount shown in the invoice does not alter the fact that service charges have been paid and thus the service receiver is entitled to take credit provided he has also paid the amount of service tax, (whether proportionately reduced or the original amount) to the service provider. The invoice would in fact stand amended to that extent. The credit taken would be equivalent to the amount that is paid as service tax. However, in case of subsequent refund or extra payment of service tax, the credit would also be altered accordingly. 7. Learned AR submitted that it is clear from the language of Rule 4(7) of Cenvat Credit Rules, 2004 that credit shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than amount initially charged by the service provider. The present case is not covered by this Circular as it is not a case of final settlement of the bill at lesser amount. In the present case, the assessee has not made substantial payment to the service provider. According to learned AR, the said Circular has been issued in respect of pre-amended provisions as applicable prior to 31.3.2011. 9. Whereas learned Counsel appearing for the respondent drew my attention towards the decision of this Tribunal in assessee's own case on identical issue as Excise Appeal No. 52258 of 2016 titled as M/s. Hindustan Zinc Ltd. vs. CCE, Udaipur [Final Order No. 57461/2017 dated 25.10.2017] by following its earlier order that too in assessee's own case for ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
