M/S Windex Tours & Travels vs Commissioner, Central Excise & Service ...

Appeal No.ST/122/2008 [Arising out of OIA-COMMR-A-/49/VDR-I/2008, dt.22.05.2008, passed by Commissioner (Appeals), of Central Excise & Service Tax, Vadodara-I]

M/s Windex Tours & Travels Appellant

Vs

Commissioner, Central Excise & Service Tax, Vadodara Respondent

Represented by:

For Appellant: Shri R. Subramanya, Advocate For Respondent: Shri T.K. Sikdar, Authorised Representative

For approval and signature:

Honble Mr. P.K. Das, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)

1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of Seen the order?

4. Whether order is to be circulated to the Departmental Yes authorities?

CORAM:

HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL)

Date of Hearing/Decision:07.09.2015

Order No. A/11267 / 2015, dt.07.09.2015

Per: P.K. Das

After hearing both the sides and on perusal of the records, we find that the Appellant is providing the taxable service under the category of Tour Operator Service. They were availing the benefit of Notification No.2/2004 as amended and 01/2006-ST, dt.01.03.2006 and paying Service Tax on taxable value, after deducting abatement @ 60% / 90% of the gross value. It was found that during the period October 2005 to March 2006 and April 2006 to September, 2006, they have availed the benefit of CENVAT Credit under CENVAT Credit Rules, 2004. It is seen from the impugned order that the Appellant had reversed the CENVAT Credit of Rs.16,486.00 on 27.04.2007. It is contended by the Adjudicating authority that the Appellant should have taken decision about the benefit of notification for claiming abatement. We find that the Appellant had already reversed the CENVAT Credit. The Tribunal in the case of Khyati Tours & Travels Vs CCE Ahmedabad  2011 (24) STR 456 (Tri-Ahmd) observed that the benefit denied on the ground of availment of CENVAT Credit alongwith benefit of abatement in respect of rent-a-cab service. It has been observed that reversal of CENVAT Credit amounts to non-availment of credit. Accordingly, the benefit of notification for claiming abatement cannot be denied. In the present case, the appellant reversed the CENVAT Credit and benefit of abatement cannot be denied.

2. In view of the above discussion, we set aside the impugned order. The appeal filed by the Appellant is allowed.

(Dictated & Pronounced in Court)

(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial)

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