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TMI Blog2016 (7) TMI 1126X X X X Extracts X X X X X X X X Extracts X X X X ..... the Board Circular clearly applies and accordingly there is no restriction to utilize the Cenvat Credit even at later date at the time of payment of service tax. In the present case the service tax along with interest was paid in the months of February 2011 i.e. before 28.5.2012. Accordingly, the condition specified for non-imposition of penalty under Section 76, 77 & 78 has been complied with by the appellant. Therefore no penalty is imposable in the present case. - Demand and penalty set aside - Decided in favor of assessee. - Appeal No. ST/89229/2013 - Order No. A/88441/16/SMB - Dated:- 4-7-2016 - Shri Ramesh Nair, Member (Judicial) Shri P.V. Sadavarte, Advocate for Appellant Shri Sanjeev Nair, E.O. (A.R) for respondent ORDER Per Ramesh Nair The appeal is directed against Order-in-Appeal No. NGP/EXCUS/000/APPL/709-710/13-14 dt. 23.7.2013 passed by the Commissioner (Appeals) Central Excise Customs, Nagpur, whereby the Ld. Commissioner (Appeals) upheld the Order-in-Original No. 02/NGP-I/2012/ST dt. 31.10.2012 except for dropping of the penalty under Section 76 of Finance Act 1994, Ld. Commissioner (Appeals) imposed a penalty under Section 76 of the Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007-08 to 2009-10. Being aggrieved by the impugned order the appellant is before me. 3. Shri P. V. Sadavarte, Ld. Counsel for the appellant submits that in the present case the service tax demand is on Renting Of Immoveable Property . The issue of taxability on such service was under serious doubt and the matter has travelled upto Supreme Court and the landmark judgment was passed in the case of Home Solution Retail Ltd. Vs. Union of India 2009 (14) STR 433 (Del.). To overcome the judgment of Home Solution Retail Ltd. the government has made a retrospective amendment in Section 65 of the Finance Act, 1994. Accordingly, the levy of service tax on renting of immoveable property has been validated from 1st Day of June 2007. It is his submission that the said amendment was enacted on 28.5.2012, therefore though the liability is pertaining to the period 2007-08 and 2008-09 but it became payable only after the enactment of the retrospective amendment. In such case the service tax liability is the arrears of service tax as on 28.5.2012. He submits that since the amount become payable only after 28.5.2012 it can be paid from cenvat account available on the date of payment. He further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cenvat account on the last day of the period for which the service tax is due. In the present case, the Cenvat credit utilized was available in the month of February 2011 therefore the same could not have been utilized for the payment of service tax pertaining to the previous period i.e. 2007-08 and 2008-09. In this support he placed reliance on the following judgments. (i) Plasweave Pvt. Limited Vs. Commissioner of C. Ex. Tirunelveli 2007 (211) E.L.T. 27 (Tri.-Chennai) (ii) Nehru Steels Vs. Commissioner of C.Ex. Kanpur 2008 (231) E.L.T. 349 (Tri.-Del.) (iii) M/s. Haryana Textile Corporation Ltd. Vs. CCE, Delhi-IV 2011-TIOL-1828-CESTAT-DEL (iv) Pranav Construction Systems Pvt. Ltd. Vs. Commr. of C. Ex., Belapur 2014 (314) E.L.T. 209 (Tri.-Mumbai). 5. I have carefully considered the submissions made by both the sides. The undisputed fact of the case is that the service tax on renting of immoveable property for the period 2007-08 and 2008-09 was paid by the appellant by utilizing the cenvat credit which was available in February 2011. The said service tax was otherwise under dispute and it became payable only after the retrospective amendment made by Finance A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above definition the Rent received by the assessee covers under the service of renting of immovable property. Further it is to mention that this Service Tax on has come w.e.f. 01.06.2007 and it is to mention that the assessee has not been registered with Service Tax under this Category till date. The Rent received on immovable property by the assessee for each financial year is as follows Financial Year Rent Received on Immovable property (in Rs.) Rate of duty Service Tax Payable (in Rs.) 2007-08 (from 01.06.2007 to 31.03.2008) 5,36,502 @12.36 66,312 2008-09 5,72,748 @12.36 70,792 2009-10 4,89,661 @10.30 50,435 Total 1,87,539 In view of the above the service provider is Required to pay a Service Tax to amounting to ₹ 1,87,539/- (including Ed Cess SH Ed Cess) under Section 73 along with interest as applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inking the same to the period to which these demand pertain. 4. A harmonious reading of rule 8 of Central Excise Rules, 2002 and first proviso to rule 3(4) of the Cenvat Credit Rules, 2004 indicates that the restriction with regard to the utilization of cenvat credit is relating to the normal payment of duty in terms of rule 8 of the Central Excise Rules, 2002, where duty for a particular month or quarter is to be discharged by the 5th of the next month. For this proviso, the cenvat credit allowed to be used is what was in balance on the last date of that month or quarter and not what accrued thereafter. Even in case of duty paid late in terms of rule 8, the credit available for utilization will remain same i.e. the credit in balance on the last date of month or quarter, as the case may be. 5. Further duty payable under rule 8 is on a different footing from duty payable under Section 11A. Duty under Rule 8 is paid after self determination by the assessee unlike Duty payable under Section 11A where generally the duty is determined by the Central Excise officer and the payment is mandated after such determination. There is no time limit prescribed under Section 11A i.e., ..... X X X X Extracts X X X X X X X X Extracts X X X X
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