2012 (6) TMI 522

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..... building and residential complexes. The appellant were availing the benefit of notification 15/04 in relation to commercial construction and notification 18/05 in respect of residential construction which provides an abatement of 67% from the gross value received of the service provided by them if the appellant has not availed the CENVAT credit on inputs/capital goods. On 01.03.2006, notification 1/2006 came into force and as per the said Notification abatement of 67% was available only in case where the CENVAT credit of input/capital goods/input service is not availed by e assessee. 3. During the course of scrutiny of records of the appellant, it was found that during the month of March 2006 to June 2006 the appellant has availed CENVAT c .....

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..... fore appellant has not violated the condition of notification 1/2006. Accordingly, the denial of abatement of 67% of gross service rendered as per notification 1/06 is not sustainable. To support his contention, he placed reliance on the decision of the hon'ble Gujarat high Court in the case of CCE vs. Reliance Inds. Ltd. 2010 (19) STR 807, Ashima Dyecot ltd. 2008 (232) ELT 580. He further submitted that on the issue of input service credit on outward transportation services, the issue has been settled by the Karnataka High Court in ABB ltd. Reported in 2011 (23) STR 97. Therefore, the demand on that account is not sustainable. As the demands are not sustainable, penalties are not leviable. 6. In alternative, he submitted that on pointing .....

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..... ef that he is entitled for CENVAT credit for the service which received prior to 01.03.2006, therefore, penalty on the appellant are not imposable in these circumstances. 10. As the appellant has reversed the CENVAT credit availed by them, along with interest, same shall be interpreted as if appellant has not availed input service credit after introduction of notification 1/06. The same view was taken by the hon'ble Apex Court in the case of CCE vs. Ashima Dyecot Ltd. 2009 (240) ELT A41 (SC). 11. In view of these observations, we set aside the impugned order on the condition that appellant shall not claim refund of the amount already reversed by them along with interest. 12. As the ld. Counsel has submitted that the issue of input servic .....

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