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TMI Blog2024 (3) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. In some cases, the appellant discharged their Service Tax Liability @4.12% and @4.94% on the value in terms of the Works Contract (Composition Scheme for payment of Service Tax) Rules, 2007. In case of some contracts where the Appellant was required to bring the materials, they used to purchase directly from the manufacturers on payment of duty and to send the same directly to the concerned site. At the concerned cite, the Appellant would maintain the required records of the materials and accordingly, the Cenvat credit was being availed and in case of such contracts, they used to discharge Service Tax liability on 100% value, without availing benefit of the abatement as provided under the said notification. 2. Shri Vinay Kansara, Learned Counsel appearing on behalf of the appellant submits that the very same issue in appellant's own case has been decided by this Tribunal vide order No. A/11599/2018 dated 01.08.2018 2018-TIOL-2937-CESTAT-AHM. Therefore, the impugned order is not sustainable and he requests that the appeal be allowed. 3. Shri Anoop K. Mudval, Learned Superintendent AR appearing on behalf of the revenue reiterates the findings of the impugned order. 4. Hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t apply in such cases where the taxable services provided are only completion and finishing services in relation to building or civil structure, referred to in sub-clause (c) of clause (25b) of section 65 of the Finance Act. Explanation . - The gross amount charged shall include the value of goods and materials supplied or provided or used by the provider of the constructio n service for uch service. 33 Provided that this notification shall not apply in cases where, - (i) the CENVAT credit of duty on inputs or capital goods or the CENVAT credit of service tax on input services, used for providing such taxable service, has been taken under the provisions of the CENVAT Credit Rules, 2004; or (ii)the service provider has availed the benefit under the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 12/2003-Service Tax, dated the 20th June, 2003 [G.S.R. 503 (E), dated the 20th June, 2003]. From the above Notification, it is clear that the service of commercial or industrial construction is exempted subject to condition given in second proviso of Notification particularly Clause (i). On plain reading of the said provision it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable service of the description specified in column (3) of the Table below and specified in the relevant sub-clauses of clause (105) of Section 65 of the Finance Act, specified in the corresponding entry in column (2) of the said Table, from so much of the service tax leviable thereon under Section 66 of the said Finance Act, as is in excess of the service tax calculated on a value which is equivalent to a percentage specified in the corresponding entry in column (5) of the said Table, of the gross amount charged by such service provider for providing the said taxable service, subject to the relevant conditions specified in the corresponding entry in column (4) of the Table aforesaid : S. No. Sub-clause of clause (105) of Section 65 Description of taxable service Conditions Percentage 1. .. 7. (zzq) Commercial or industrial construction service. This exemption shall not apply in such cases where the taxable services provided are only completion and finishing services in relation to building or civil structure, referred to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VAT credit in respect of another contract. In other words, there is no stipulation in the Notification that the option to avail/non-avail CENVAT credit has to be exercised uniformly in respect of all the contracts executed by the assessee. It is for the assessee to choose which formulation he wants to follow in a given contract. 4.3 As regards the issue whether centralised registration has any effect on the availment of benefit under Notification 15/2004-S.T. or 1/2006- S.T., these notifications do not refer to or stipulate any such conditions. Therefore, the benefit of these notifications can be availed by any assessee so long as he satisfies the terms and conditions specified therein, irrespective of the fact whether he is centrally registered or not. Centralised registration is only a facility for accounting purposes and filing of the returns and the same has nothing to do with the availment of benefit under an exemption notification. 4.4 The next issue for consideration is in a case/contract where abatement benefit is availed under Notification 15/2004 or 1/2006, without taking CENVAT credit on inputs or capital goods or input service and service tax liability is discharged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exception. Therefore, in respect of a contract where the assessee has not taken input credit prior to 01.03.2006. and input/input service tax credit on or after 01.03.2006, the assessee would be rightly entitled for the benefit under the notification no. 15/2004-ST as replaced by notification no. 1/2006 dated 01.03.2006. In a case where the assessee avails CENVAT credit, then in such cases the assessee is not entitled for abatement and the service tax liability will have to be discharged on the full value of the contract. There is nothing in these notifications which prevents an assessee from not availing CENVAT credit and paying service tax on 100% of the contract value in respect of one particular contract and availing abatement and not availing CENVAT credit in respect of another contract. In other words, there is no stipulation in the notification that the option to avail/non-avail CENVAT credit has to be exercised uniformly in respect of all the contracts executed by the assessee. It is for the assessee to choose which formulation he wants to follow in a given contracts." In view of the above, it is clear that the appellants can avail Notification No. 1/2006-ST, so long as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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