IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH, MUMBAI
COURT NO.II

Application No.ST/S/904/12
Appeal No.ST/255/12-Mum

Arising Out of Order-in-Appeal No.PIII/RS/53/2012 Dated: 21.02.2012
Passed by the Commissioner of Central Excise (Appeals), Pune

Date of Decision: 21.05.2012

ARCHIVISTA ENGINEERING PROJECTS PVT LTD

Vs

COMMISSIONER OF CENTRAL EXCISE, PUNE-III

Appellant Rep by: Ms Padmavati Patil, Adv.
Respondent Rep by: Shri H B Negi, Addl. Commissioner (AR)

CORAM: Ashok Jindal, Member (J)
P R Chandrasekharan, Member (T)

ST – Commercial and Industrial Construction services – Notfn. 1/2006-ST – appellant had availed abatement of 67% on gross value of services and also availed credit on inputs which is not permitted in terms of the proviso to the notification – demand issued for denying the benefit of the notification – after issuance of SCN appellants have reversed the entire input credit along with interest - in B.G.Shirke Technology P. Ltd.  Tribunal has held that such reversal is sufficient for availment of benefit of notfn. – since lower appellate authority has dismissed appeal for non-compliance of provisions of s. 35F without going into merits, in interest of justice matter remanded to Commr(A): CESTAT [paras 2 & 3]

Case relied upon –

B.G.Shirke Technology P. Ltd. …para2…referred

ORDER NO.S/833/2012/CSTB/C.I
A/497/2012/CSTB/C-I

Per: Ashok Jindal:

The appellants are engaged in the activity of commercial and industrial construction services. As per Notification No.1/2006-ST, the appellants are entitled to avail 67% abatement of gross amount received against the services rendered by them if they have not availed input service credit on capital oods/inputs. On scrutiny of the records, it was found that the appellants have availed input service credit on capital goods/inputs and also availed abatement of 67% on gross value of services rendered by them. Therefore, a show-cause notice was issued to them for the period April,2006 to March,2007. After issuance of show-cause notice, the appellants have reversed the entire input credit taken by them along with interest but the lower authorities have demanded the service tax on the entire amount of services rendered by them as they have availed the input service credit.

2. Considering the fact that the applicant has already reversed the input service credit along with interest and following the decision in the case of B.G.Shirke Technology P. Ltd. vs. CCE Pune-III  wherein this Tribunal has taken a view that reversal of input credit along with the interest is sufficient for availment of benefit under Notification1/2006-ST, after granting waiver of pre-deposit, we take up the appeal itself for final disposal. At this stage, we find that, vide impugned order the appeal has been dismissed for non-compliance of the provision of Section 35 of the Central Excise Act, 1944.

3. As discussed above, the impugned order is not on merits therefore, it would be in the interest of the justice, we remand the matter back to the first appellate authority to pass an appropriate order on merits. Therefore, we remand the matter back to the Commissioner (Appeals) to pass an order on merit without insisting on any pre-deposit.

4. The appeal and stay application are disposed of in the above term.

(Dictated in open Court)

 

 
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