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TMI Blog2023 (5) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... t availed Cenvat credit on the basis of ST-3 returns which shows income under exempted services. It is not the case of the appellant that he has not provided any exempted services. It is found that the concept of partial exempted service came into effect from 01.07.2012 by virtue of Notification No. 28/2012. Therefore, the contention of the appellant is agreed upon that during the relevant time, there was no concept of partial exemption and even after 01.07.2012 such partial exemption was with the condition that the said exemption, if any, should be subject to non-availment of Cenvat credit on inputs and input services. The appellant claimed Cenvat credit only in respect of input services used for providing Works Contract Service - It can be seen that there is no bar under the said rule for availment of Cenvat credit on input services. The bar was only on inputs. Moreover Adjudicating authority erred in holding that the appellant has availed simultaneous benefit of abatement and of Cenvat credit. The appellant submitted that the condition of non-availment of Cenvat credit has been fulfilled in respect of Construction Services and only in respect of Works Contract Service, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crutiny of the ST-3 returns submitted by the appellant, it appeared to the Department that the appellant was providing taxable as well as exempted services; they have not maintained separate records showing the credit utilized in exempted as well as dutiable services in contravention of Rule 6 (3) of Cenvat Credit Rules, 2004 [CCR]; they have failed to pay an amount equal to 6% of value of the exempted services for the period April 2008 to September 2008 and April 2009 to September 2009. Accordingly show cause notices [SCNs] dated 22.10.2009 and 22.10.2010 were issued to the appellant seeking recovery of service tax of Rs. 1,32,72,624/- and Rs 6,24,35,382/- respectively. Commissioner (Adjudication), Service Tax, New Delhi, vide order dated 05.05.2014, confirmed the demands raised by above-cited SCNs and two more SCNs dated 23.04.2009 and 24.04.2009; Adjudicating authority has also imposed penalties under Section 76 and 77 of the Finance Act, 1994 and Rules 15 (3) and 15A of CCR. The appellant assails the order vide Service Tax Appeals No. 54118 of 2014 and 54119 of 2014. As the issue involved in both the appeals is identical covering two different periods, the same are heard togeth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectified the same by subsequent letter dated 10.09.2012; anyway mistakes in figures cannot be ground for any adverse interference. 3. Shri Rajeev Kapoor, learned Authorized Representative appearing for the Department reiterates the findings of the Adjudicating authority. 4. Heard both sides and perused the records of the case. 5. Brief issue that requires our consideration in the instant case is in a narrow factual matrix, that is, as to whether the appellant has maintained separate records of credit of inputs and input services used by them in the dutiable as well as extra services provided by them as alleged in the SCN. It is also to be decided whether availment of credit of input services utilized in the execution of works contract service is permissible. 6. We find that Commissioner observes that the appellant vide letter dated 10.09.2012 submitted that their averments vide letter dated 14.02.2011 was incorrect and the mistake was due to a clerical error; the claim of the appellant that they have not taken any credit of inputs, input services or capital goods for the sites in respect of which exemption under Notification No. 1/2006-ST has been claimed, is incorrec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant periods reads as: exempted services means taxable services which are exempt from whole of the service tax leviable thereon and include services on which no service tax is leviable under Section 66 of the Finance Act, 1994 ; 9. We find that the concept of partial exempted service came into effect from 01.07.2012 by virtue of Notification No. 28/2012. Therefore, we are in agreement with the contention of the appellant that during the relevant time, there was no concept of partial exemption and even after 01.07.2012 such partial exemption was with the condition that the said exemption, if any, should be subject to non-availment of Cenvat credit on inputs and input services. We find that Commissioner finding as follows has no legal basis : As contended regarding Notification No. 01/06 dated 01.03.2006, in this regard I find that vide this notification, the government has, interalia, provided exemption of the taxable value partially with regard to ICCS, RCS, WCS with condition that Cenvat credit of inputs, capital goods and input services should not have been taken along with benefit of Notification No. 12/03 dated 20.06.2003. It is observed that assessee has avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not applicable under the commercial or industrial construction service, construction of complex service or works contract service . 12. We find that the said certificate also provides site-wise credit availed by the appellant. We find that the Adjudicating authority has not discussed anything about the said Chartered Accountant certificate. He has not recorded any findings as to why the Chartered Accountant certificate should be dis-regarded. We find that it is not correct on the part of the Adjudicating authority to pass an order without going through the contents of the said Chartered Accountant certificate; without causing reasonable verification of the same and without negating in the same with cogent evidence and reasons. We find that the Courts and the Tribunal have time and again held that a certificate issued by a professional cannot be dis-regarded or over-looked without adducing cogent evidence to prove that the said certificate is incorrect. We find that Tribunal in the case of Monarch Pipes Ltd. versus Commissioner of Central Excise, Tirupati [ 2010 (262) E.L.T. 406 (Tri. Bang.) ] observed that : 4.2 We fail to understand how the Adjudicating Authority could ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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