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TMI Blog2018 (8) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... usion in the field, as regards the taxability of the rental income and renting of immovable property and the issue was subject to matter of litigation at various levels, with interim stays operating - there could be a bonafide belief on the part of the assessee not to pay the service tax on the said Count - penalty set aside. CENVAT Credit - inputs commonly used for providing taxable services as also exempted services - Rule 6 (3) of Cenvat Credit Rules - Held that:- During the period 2008-09 to 2010-11, the appellant availed full Cenvat Credit in respect of inputs Service Tax paid on input services covered within the scope of Rule 6(5) of the Credit Rules as tax paid services were not used exclusively for exempted services. From 2008-09 to 2010-11, the appellant availed full Cenvat credit in respect of input services covered within the scope of Rule 6(5) of the Cenvat Credit Rules. A total credit of 22,59,164/- was availed by the appellant in respect of services covered under Rule 6 (5) - The Cenvat credit in respect of services covered under Rule 6 (5) shall be allowable without restriction of 20%. Time limitation - the show cause notice stands issued on 11.12.2012 for the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself along with payment of interest of ₹ 6,76,621/- and are not challenging the confirmation of the same and the challenge in the present appeal is only to imposition of penalty of identical amount. Arguing further, he submits that inasmuch as the demand has been confirmed under the wrong category and that too by invoking the longer period of limitation, imposition of penalty upon them is not justified, as the issue was not free from doubt and there was no suppression on their part. 3. We note that the appellant have not challenged the confirmation of service tax though for the purposes of penalty, it stands argued before us that the service tax was not payable by them under the category of 'Advertising Agency Services'. In any case the appellant having disputed the same, is not contesting the confirmation. As regards penalty, we find force in the appellant‟s contention that the demand was not required to be confirmed under the 'Advertising Agency Services', inasmuch as no such service was being rendered by the appellant. If at all, the service tax liability would fall under the category of "Sale of Advertising Space", for which there is no allegation or proposal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, during the relevant period there was lot of confusion in the field, as regards the taxability of the rental income and renting of immovable property and the issue was subject to matter of litigation at various levels, with interim stays operating. Appreciating the same, we are of the view that there could be a bonafide belief on the part of the assessee not to pay the service tax on the said Count. The entire service tax having been paid by the appellant along with interest, we are of the view that no penal action is required against them. Accordingly, while confirming the demand on the said Count, as not being challenged, we set aside the penalty imposed upon the assessee on the said issue. 6. Further, demand to the extent of ₹ 2,12,77,262/- stands confirmed against the appellant in terms of provisions of Rule 6 (3) of Cenvat Credit Rules on the ground that the appellant has availed Cenvat credit in respect of input services such as Event Management, Cleaning and Housing Service, Market Research, Maintenance & Repair, Courier, Telephone and Advertisement etc. which were commonly used for providing taxable services as also exempted services such as Exhibition of Movie in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (e) Real Estate agent services (f) Security agency services (g) Scientific or technical cconsultancy services (h) Banking and Financial services (i) Insurance Auxiliary Services (j) Erection, Commissioning and Installation Services (k) Management, Maintenance or Repair Services (l) Technical Testing and Analysis Services (m) Technical Inspection and Certification Services (n) Foreign Exchange Broker Services (o) Commercial and Industrial Construction Services (p) Intellectual Property Services, Rule 6(5) of the Credit Rules says that a provider of services shall be eligible to avail Cenvat credit of entire Service Tax paid on the above - mentioned services in full provided the said services have not been used Exclusively in rendering of exempted services. Rule 6(5) is not attracted for two reasons (a) three services are not exempt services and (b) 17 services have not been exclusively used for exempt services. For 2007-2008, Appellant followed restriction contained in Rule 6(3) (c) of Cenvat Credit Rule by utilizing the Cenvat credit to the extent of 20% of output tax liability. During the period 2008-09 to 2010-11, the appellant availed full Cenvat Credit in respect of inputs Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd once the assessee has been regularly filing the ST-3 return, the allegation of suppression or misstatement cannot be upheld against them, as held by the Tribunal in the case of M/s Sayaji Hotels Ltd. Vs CCE reported at 2011 (24) STR 177 (Tri.-Delhi). 8. We note that the said demand stands raised against the appellant on allegation find that they have used common Cenvatable input service for dutiable as also for exempted output services. However, the adjudicating authority has no where clarifies as to how the sale of eatables, exhibition of movies or parking charges are exempted services. For holding any service as exempted, first the revenue is required to prove that the service is taxable. There is nothing in the impugned order of Commissioner as to under which category the said services fall and as to under which category the same are taxable. If the services are not classifiable under any of the categories and or otherwise not taxable, the provisions of Rule 6 (3) would not apply. As such we are of the view that there was no legal obligation on the part of the appellant to either reverse the proportionate credit or to pay in terms of provisions of law @ 8%/6% of the value of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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