2013 (4) TMI 671 - AT - Service Tax

Availment of credit Revenue submitted that services rendered to the residential complex is not in relation to the manufacturing or output services and directing the appellant to reverse the credit availed by them Appellant contention the same was hit by limitation. Held that - Contentions raised by the appellant that the entire case is hit by limitation is correct. It is on record that the appellant has been filing regularly returns during the relevant period, wherein they have shown the availment of Cenvat credit. I find that there is nothing on record to show that appellant had availed Cenvat credit which was not due to them during the relevant period. At the same time, during the material period, there were various decisions which were in favour of the assessee as regards the Cenvat credit of the service tax paid by the service provider at the residential colony. Appellant could be under bonafide belief to avail the Cenvat credit which cannot be questioned and such a bonafide belief prompted the appellant to avail Cenvat credit. Thus, the demanding the same is held to be hit by limitation.

Summary

Issues:
1. Availment of Cenvat credit on services rendered to residential complex.
2. Availment of Cenvat credit on event management services.
3. Question of limitation regarding the demands raised by the show cause notice.

Analysis:

Issue 1: Availment of Cenvat credit on services rendered to residential complex
The appellant availed Cenvat credit on services provided to their residential complex. The audit party raised a query regarding this, leading to a show cause notice issued by the lower authorities. The adjudicating authority dropped the proceedings initiated by the show cause notice, but the revenue filed an appeal. The learned counsel argued that the credits were availed within a specific period and cited tribunal decisions supporting the eligibility of such credits. However, the Assistant Commissioner argued against the eligibility based on a High Court ruling. The Tribunal found that the High Court ruling favored the revenue, but also noted the appellant's bonafide belief in availing the credit, which was supported by previous tribunal decisions. Ultimately, the Tribunal held that the demand raised by the show cause notice was hit by limitation, and the appeal was allowed on this ground.

Issue 2: Availment of Cenvat credit on event management services
The appellant also availed Cenvat credit for event management services related to a business activity. The Assistant Commissioner reiterated the lower authorities' findings against the eligibility of such credits. However, the Tribunal referenced a High Court ruling in favor of the assessee when event management was for business promotion. Despite conflicting decisions, the Tribunal concluded that the demand raised by the show cause notice was barred by limitation, considering the appellant's bonafide belief in availing the credit.

Issue 3: Question of limitation regarding the demands raised by the show cause notice
The main issue in this case revolved around whether the demands raised in the show cause notice were within the limitation period. The Tribunal carefully considered submissions from both sides and examined the records. It noted that the appellant had regularly filed returns during the relevant period, showing the availment of Cenvat credit. There was no evidence to suggest that the credit was wrongly availed. The Tribunal acknowledged the appellant's bonafide belief and the changing legal landscape regarding such credits. Ultimately, the Tribunal held that the show cause notice issued in March 2010 was indeed hit by limitation. As a result, the impugned order was set aside, and the appeal was allowed solely on the question of limitation.