Custom, Excise & Service Tax Tribunal
M/S Lemon Tree Hotels Pvt. Ltd vs Commissioner Of Central Excise, Goa on 15 November, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. IV Appeal No. ST/86188/15 (Arising out of Order-in-Appeal No. GOA-EXCUS-000-APP-44-14-15 dated 30.01.2015 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Goa). For approval and signature: Honble Shri Raju, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No 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 : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== M/s Lemon Tree Hotels Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Goa Respondent Appearance: Shri Amit Agarwal, C.A. for Appellant Shri S.R. Nair, E.O. (AR) for Respondent CORAM: SHRI RAJU, MEMBER (TECHNICAL) Date of Hearing: 23.08.2016 Date of Decision: 15.11.2016 ORDER NO. Per: Raju
The appellant, M/s Lemon Tree Hotels Pvt. Ltd., were earlier registered for providing various services and were availing CENVAT Credit for the same. With effect from 1.5.2011, they registered themselves for the services of Short Term Accommodation and Restaurant Services and started availing benefit of Notification No. 1/2006-ST dated 1.3.2006. The said notifications are available subject to the condition that no CENVAT Credit is availed. However, the appellant had certain amount in their credit in balance as on 31.3.2011 and utilized the same for payment of duty on newly introduced services, on which they were availing the benefit of Notification No. 1/2006-ST dated 1.3.2006. A notice was issued to the appellant seeking to deny the credit utilized on the services on which exemption under Notification No. 1/2006-ST dated 1.3.2006 was availed. The demand was confirmed by the lower authorities and aggrieved by the said order, the appellants are in appeal before the Tribunal.
2. Learned C.A. for the appellant argued that the issue has been settled by the following decisions: -
(a) Archivista Engineering Projects Pvt. Ltd. Vs. Commissioner of Central Excise, Pune-III 2015-TIOL-1278-CESTAT-MUM.
(b) Bharat Heavy Electricals Ltd. Vs. Commissioner of Central Excise, Nagpur 2014 (34) STR 430 (Tri-Mum)
(c) Hotel Amarjit Pvt. Ltd. Vs. Commissioner of Central Excise, Nagpur 2014 (35) STR 140 (Tri-Mum).
3. Learned AR relied on the impugned order. He also relied on the decision of the Tribunal in the case of Afcon Infrastructure Ltd. 2016-TIOL-1818-CESTAT-MUM.
4. I have gone through the rival submissions. I find that identical issue has been decided by the Tribunal in the case of Archivista Engineering Projects Pvt. Ltd. 2015-TIOL-1278-CESTAT-MUM. In para 7 of the said order, the Tribunal has observed as follows: -
7.?Having considered the rival contentions, I hold that the appellant have rightly taken credit for the input services received and availed admittedly prior to 1-3-2006 although credit for the same have been taken on 1-4-2006, subsequent to coming into force of Notification No. 1/2006, following the ruling of the Honble High Court of Bombay in the case of Tata Engineering & Locomotive Company Ltd. (supra). The intention of the Government is also to express, that it is not to disallow the Cenvat credit for the previous period as there is no such specific bar in the subsequent Notification No. 1/2006. This view, is further fortified by the view taken by C.B.E. & C. Circular with respect to brought forward Cenvat credit under Rule 6 sub-rule (3) when the disability of utilisation of 20% was removed. 4.1 In the case of Bharat Heavy Electricals Ltd. 2014 (34) STR 430 (Tri-Mum), the Tribunal has observed as follows: -
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 on the reduced value, whether for the purpose of discharge of service tax liability, accumulated CENVAT credit arising from some other case/contract can be utilised or not. In our view, there is no such bar or restriction/prescribed in the notification. The notification only stipulates that in respect of a case/contract, where abatement is availed, no CENVAT credit on inputs, capital goods or input services shall be taken. So long as this condition is satisfied, abatement is permissible. Discharge of service tax liability on the non-abated portion of value 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. I find that the aforesaid decisions squarely cover the issue in hand.
4.2 Learned AR has relied on the decision of Afcon Infrastructure Ltd. (supra). I find that the facts in the said case are significantly different from the facts in the instant case.
5. Relying on the decisions of the Tribunal in the cases of Archivista Engineering Products (supra) and Bharat Heavy Electricals (supra), the impugned order is set aside and the appeal is allowed.
(Pronounced in Court on 15.11.2016) (Raju) Member (Technical) Sinha 3 Appeal No. ST/86188/15