Custom, Excise & Service Tax Tribunal
Tidel Park Ltd vs Commissioner Of Service Tax, Chennai on 15 February, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No.S/232/07
[Arising out of Order-in-Appeal No.28/2007 (M) (ST) dated 28.6.2007 passed by the Commissioner of Central Excise (Appeals), Chennai]
For approval and signature:
Honble Ms.JYOTI BALASUNDARAM, Vice-President
1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? :
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? :
3. Whether the Member wishes to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Tidel Park Ltd.
Appellants
Versus
Commissioner of Service Tax, Chennai
Respondent
Appearance:
Shri T.Ramesh Kutty, Auth.Rep. Ms.Indira Sisupal, JDR For the Appellants For the Respondent CORAM:
Honble Ms.Jyoti Balasundaram, Vice-President Date of hearing : 15.2.2010 Date of decision : 15.2.2010 Final Order No.____________ The authorities below have held that the assessee herein who is providing taxable services such as Mandap Keeper and Health club and Fitness centre as well as non-taxable service of leasing out immovable property is entitled to avail credit only upto the extent of 35% upto 10.9.2004 and 20% thereafter in terms of Rule 6 (3) (c) of CENVAT Credit Rules, 2004.
2. I have heard both sides and find merit in the submission of the assessees that they are entitled to the whole of the credit of the service tax paid on taxable service as specified in 17 specified categories covered by Rule 6(5) as such service is not used exclusively in or in relation to the providing of exempted services. Rule 6(5) is a non-obstante clause and therefore completely widens the restriction contained in Rule 6 (3) (c). It is not the case of the Revenue that the taxable service on which service tax has been paid is not one of 17 categories specified in Rule 6 (5) of CENVAT Credit Rules, 2004. I, therefore, set aside the impugned order by accepting that the assessees are entitled to entire credit, and allow the appeal with consequential relief due to the appellants in accordance with law.
(Dictated and pronounced in open court) (JYOTI BALASUNDARAM) VICE-PRESIDENT gs 4