Page 131 - GSTL_11th June 2020_Vol 37_Part 2

2020 ] HARSH CONSTRUCTIONS PVT. LTD. v. COMMISSIONER OF C. EX., NASHIK 217
ute itself prescribes a percentage as total value as the value of service, the re-
maining portion of the value would neither be considered as an abatement nor as
an exemption and accordingly we hold that the restaurant service would not be
covered under the definition of input service and hence the provisions of Rule 6
of CCR are not applicable. We also note that for the subsequent period from 1-4-
2013 to 31-3-2014, this Tribunal vide its Final order No. 21118/2018, dated 8-8-
2018 has allowed the appeal of the appellant by holding that restaurant service
and accommodation service on which abatement is claimed by the appellant are
not exempted services as defined under Rule 2(e) of the CCR. Further we find
that during the relevant period in both the cases, the appellants have availed the
total Cenvat credit of Rs. 23 lakhs (approx.) whereas vide the impugned order,
the Commissioner is demanding more than Rs. 80 lakhs which is more than the
total credit availed and on this ground also, the demand is not sustainable. Fur-
ther we find that for the period April, 2008 to March, 2012, the entire demand is
barred by limitation because the show-cause notice was issued on 21-10-2013 for
the period April, 2008 to March, 2012 whereas the normal period of limitation is
one year. Extended period in the present case cannot be invoked because the law
on the point was not clear and the definition of exempted service was changed
from time to time and the interpretational issue was involved. Therefore, in our
view, the substantial demand for the period from April, 2008 to March, 2012
amounting to Rs. 69,76,592/- is entirely time barred. Further the Tribunal in the
earlier order passed in favour of the appellant has observed in the finding that
for the subsequent period, the Assistant Commissioner vide Order-in-Original
No. 44/ST/DIV(AC)/2017-18, dated 31-10-2017 has dropped the demand in the
show cause notice raised on identical grounds.
7. In view of our discussion above, we are of the considered view that
the appellants are not required to comply with the provisions of Rule 6 of the
Cenvat Credit Rules, 2004. Consequently, the impugned order is not sustainable
in law and the same is set aside by allowing both the appeals of the appellant.
(Order pronounced on 23-10-2019)

_______

2020 (37) G.S.T.L. 217 (Tri. - Mumbai)
IN THE CESTAT, WEST ZONAL BENCH, MUMBAI
[COURT NO. I]
S/Shri S.K. Mohanty, Member (J) and Sanjiv Srivastava, Member (T)
HARSH CONSTRUCTIONS PVT. LTD.

Versus
COMMISSIONER OF C. EX., NASHIK
Final Order No. A/85427/2019-WZB, dated 5-3-2019 in Appeal
No. ST/87946/2013
Works Contract service - Composition Scheme for payment of Service
Tax under Works Contract (Composition Scheme for Payment of Service Tax)
Rules, 2007 - Denial of benefit on the ground of failure to file option for its

GST LAW TIMES  11th June 2020  131