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TMI Blog2024 (4) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, denying the benefit of abatement claimed under Notification No. 1/2006 dated 01.03.2006, while discharging service tax liability, on the grounds that instead of discharging liability in cash, it has utilised Input Tax Credit availed on account of 16 Specified services as provided under Rule 6(5) of the (CCR). 3. Appellant had stated in its reply to the SCN that the restriction imposed under notification, is that the service provider should not have availed CENVAT Credit of "Inputs and Input services" procured for providing the output services specifically listed in the Notification No. 1/2006. Restriction has been imposed on availment and subsequent utilization of the accumulated CENVAT credit of input services procured for providing output services listed under Rule 6(5) of the CCR. Rule 6(5) of CCR was omitted with effect from 01-04-2011. Appellant also submitted that they had utilized the accumulated CENVAT Credit as on 31-03-2011, because once CENVAT credit is admissible, there is no restriction on utilization thereof. However, the Learned Commissioner rejected Appellant's submissions and confirmed the demand. Hence the Appellant is before us. 4. Appellant submits that Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012 & ST/26265/2013 (own case of appellant), in paras 6,7 and 8 is has been held that: - "6. On careful consideration of the submissions made by both sides and perusal of records, we find that the issue that falls for consideration of this Bench is whether the service tax paid on Works Contract Services, Project Management and Architectural Professional Services can be considered as input services for the appellant when these services are used for construction of hotel. 7. It is undisputed that the services are utilized for brining to existence building which is used by the appellants for hospitability business and is used for rendering output services like mandap keeper and health club and fitness centre and dry cleaning service and internet cafe services. It is an unimaginable that a hotel can render these services without a building in its place. In our considered view, the input services are availed by the appellant in respect of Works Contract Services, Project Management Services and Architectural Professional Services used for construction of a building, which subsequently is put into use for rendering taxable output services. We find that the adjudicating authority was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of Gujarat in the case of Mundra Ports and Special Economic Zone Ltd., (supra) the ratio is in paragraph No. 7, 8 & 9 which we with respect reproduce :- 7. It is not disputed that jetty was constructed and input credit was claimed on cement and steel. The aforesaid definition of Rule 2(k) was applicable and Explanation 2 did not provide that cement and steel would not be eligible for input credit. According to learned Counsel for the appellant, the appellant is not manufacturer and, therefore, the provisions of Explanation 2 of Rule 2(k) would be applicable only to the factory and manufacturer. The appellant is neither having any factory nor he is manufacturer. The appellant is a service provider of port. We need not go into this question as to whether the appellant is a factory or manufacturer or service provider in view of the fact that it is not disputed by Mr. Y.N. Ravani, learned counsel appearing for the Revenue in this Tax Appeal that the appellant provides service on port for which he is getting jetty constructed through the contractor and the appellant has claimed input credit on cement and steel. The cement and steel were not included in Explanation 2 from 2004 up t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to clarify existing provision. Even, if the new provision is added then it will be new amendment and cannot be treated to be clarification of particular thing or goods and/or input and as such, the amendment could operate only prospectively. In our opinion, the view taken by the Tribunal is based on conjectures and surmises as the Larger Bench of the Tribunal used the expression that intention behind amendment was to clarify. The coverage under the input from where this intention has been gathered by the Tribunal has not been mentioned in the judgment. There is no material to support that there was any legislative intent to clarify any existing provision. For the same reason, as mentioned above, the decision of the Apex Court in Sangam Spinners Limited v. Union of India and Others, reported in (2011) 11 SCC 408 = 2011 (266) E.L.T. 145 (S.C.) would not be applicable to the facts of the instant case. 9. Mr. Ravani has also vehemently urged that since jetty was constructed by the appellant through the contractor and construction of jetty is exempted and, therefore, input credit would not be available to the appellant as construction of jetty is exempted service. The argument though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period states that credit is eligible on the services specified therein, if such services are not used exclusively for exempted services. Even if we consider that prior to 1-5-2011, the output services of short-term accommodation services and restaurant services were not taxable services, the appellants were rendering other taxable services like health club and fitness service, internet cafe service etc. Since the services specified in Rule 6(5) were not used by the appellant exclusively for non-taxable services, the appellants are eligible for the credit. The said Rule starts with a non obstante clause wherein it is stated that notwithstanding anything contained in Rule 6(1), (2) and (3), the assessee will be eligible for credit on input services specified therein when it is not exclusively used for exempted services. The said Rule was omitted w.e.f. 1-4-2011. The credit is eligible on application of Rule 6(5) of CCR, 2004. The decision in the case of Asia Pacific Hotels Ltd. (supra) explains the same. The relevant portion is reproduced as under :- "6. We have carefully considered the submissions made by both the sides. The purpose and objective of Cenvat Credit Rules is to al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccommodation services and restaurant services. The credit already availed in 2009 was used to discharge the service tax liability. The Notification No. 1/2006-S.T. does not say that assessee cannot avail any credit at all. The condition is that the abatement would be available only if input service credit is not availed on input services used for providing such services specified in column 2 of the notification. In the appellant's own case reported as 2017 (7) TMI 799 (CESTATHyderabad), the co-ordinate Bench of the Tribunal at Hyderabad had considered the very same issue on identical facts by relying upon the judgment of the Hon'ble High Court of Gujarat in the case of Mundra Ports and Special Economic Zone Ltd. v. CCE - 2015 (39) S.T.R. 726 (Guj.) and held (reproduced herein above) 5.5 In the case of Bharat Heavy Electrical Ltd. v. CCE, Nagpur - 2014 (34) S.T.R. 430 (Tri.-Mum.), the Tribunal had occasion to analyse a similar issue with regard to availability of abatement under the Notification No. 1/2006-S.T. The Tribunal observed as under :- "4.2 A plain reading of the Notifications clearly shows that the condition relating to non-availment of Cenvat credit on inputs/input ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue is a totally different matter. Hence there is no bar/restriction in discharging Service Tax liability through accumulated Cenvat credit so long as no Cenvat credit is taken on the inputs/capital goods or input services used in the rendering of the service in the given case or contract and we hold accordingly." 6. Following the above decisions and after considering the facts and evidences presented before us, we hold that the demand raised in respect of wrong availment of credit and wrong availment of abatement cannot sustain. The impugned order to the extent of demand raised on these issues is set aside without disturbing the demand of Service Tax on Convention services. The appeal is allowed in above terms. 10. In third 6 Final Order No. A/85880/2018-WZB, dated 03.04.2018 in Appeal No. ST/86187/2015-ST(DB) in the appellant's Aurangabad Unit, Coordinate Bench following ratio of the final orders passed by this Tribunal (Hyderabad) and also by CHENNAI Bench has set aside the demand raised by the department with consequential relief. 11. Therefore, in view of the facts placed on record and the precedent orders by Co-ordinate Bench of this Tribunal and Co-ordinate Benches at Chen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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