NU Calcutta Construction Company vs. Commissioner of Service Tax, Kolkata (2014-TIOL-2451-CESTAT-KOL)
Facts: Appellant is engaged in the business of providing ’maintenance, and repair, erection, commissioning and installation services’ and ‘commercial or Industrial Construction service’. The former is a pure service whereas later is composite service involving material supply. Appellant availed benefit of Notification 01/2006 in respect of construction service contracts and did not avail cenvat credit. However, in respect of maintenance & repair contracts, they availed cenvat credit and discharged service tax liability on gross value.
Revenue contended that if the service provider avails abatement in respect of one contract, he has to satisfy the condition of the same even in respect of other contracts. Further, Revenue submitted that the Appellant has failed to adduce evidence that where abatement has been claimed, no cenvat credit has been availed and vice-versa.
Held: The Tribunal relying on a judgment of Ahmadabad, Tribunal1 held that it is the services which are liable to taxes and not the person providing such services.
Secondly, the Appellant has provided contract wise details of pure service contract (on which availed credit) and composite contract (on which availed abatement).
Hence, the assessee can avail abatement and cenvat for different contract.
1. M/s SMP Constructions Pvt. Ltd. Vs. CCE, Vadodara-II
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