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TMI Blog2018 (9) TMI 1718X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the period 1.7.2010 such services provided by the builders / developers will not be taxable - services prior to 1.7.2010 also not taxable. Period w.e.f. 1.7.2010 - composition scheme under the said Rule 3 (3) - Held that:- The adjudicating authority has denied the benefit of the composition scheme only on the preliminary ground that the assessee has not exercised option before “due date of payment of tax” - denial of compensation scheme to the assessee on the said ground is not justified and improper and therefore requires to be set aside - demand set aside. CENVAT Credit - period 1.6.2005 to 1.7.2010 - Held that:- Appellant had paid service tax - Hon’ble Apex Court in the case of Punjab Tractors Vs CCE Chandigarh [2005 (2) TMI 141 - SUPREME COURT OF INDIA] have held that when duty is paid by the assessee even on exempted goods, modvat credit availed and reversed at the time of clearance of the final product cannot be demanded - credit remains allowed. Input service credit - duty paying invoices - denial also on the ground that related invoices did not bear invoice number and / or date - Going by the provisions of Rule 9 (2) of CCR 2004, as also plethora of decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of law. The resultant adjudication orders have confirmed these proposals. Hence Appeals ST/573/2011, ST/41497/2013, ST/41625/2013, St/42103/2014 and ST/40659/2015 by the assesssee. 2. The details of the SCNs, periods, grounds, amounts involved therein, impugned orders in respect of each of these appeals as submitted by the assessee are reproduced are as under: Sl. No. Appeal Nos. Impugned Order SCN No. Date Period Involved Category of Service Amounts adjudicated/ Demanded Service Tax Cess CENVAT Credit Penalties 1. ST/573/ 2011 O-I-O No.: 14/2011 Commr dtd. 16.8.2011 SCN: C No V/CRC/15/11/2009 STC (ADJ) dated 23.10.2009 01.8.2006 to 31.3.2009 Construction of (Residential) Complex Service Sec. 65(105)(zzzh) 12,47,18,238/- 72,34,120/- Rs.12,47,18,238/- - u/s 78, Rs.4000/- - u/s 77 up to 31.3.2008, Rs.5000/- - u/s 77 From 30.9.2008 to 31.3.2009, Rs.72,34,120/- u/r 15 (4) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y virtue of the law as laid down by the Hon ble Apex Court in the case of CCE Cus, Kerala Vs L T Ltd. - 2015 (39) STR 913 (SC). ii) For the period from 1.6.2007 and up to 1.7.2010 also, the assessee as promoters / builders would not be liable to service tax levy since Explanation to Section 65 (105) (zzzh) of the Finance Act, 1994 in respect of Construction of Residential Complex was added only from that date. Hence service tax would not be attracted in respect of assessee till 1.7.2010. Assesssee has discharged service tax liability even for this period, namely 1.6.2007 to 1.7.2010 under works contract. iii) Although they were not required to discharge service tax liability during 1.6.2007 to 1.7.2010 they have nonetheless paid service tax under the works contracts service after availing the compensation scheme. Therefore when they have paid service tax for the periods 16.6.2005 to 31.07.2006 and from 1.6.2007 to 1.7.201, when they were not required to discharge such liability the cenvat credit that they have availed during those periods which have been utilized for payment of such tax, cannot then be demanded from them. In this regard, Ld. Advocate relies upon the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment have been received and accounted for in the books of account of the receiver. Ld. Advocate in all the cases where the credit has been denied it has not been disputed or alleged that the corresponding input services have not been received. 3. On the other hand, Ld. A.R Shri K.P. Muralidharan supports the impugned orders and in the case of departmental appeal, reiterates the grounds therein. 4. Heard both sides and have gone through the facts. 5.0 We intend to address the issues one by one. 5.1 For the period up to 1.6.2007, as the law laid down by the judgment of the Hon ble Apex Court in the case of L T Ltd. ( supra ), there will not be any service tax liability on the assessee. Appeals of the assessee on this score succeed. So ordered 5.2 For the period from 1.6.2007 to 1.7.2010, the Board s circulars and Tribunal s decisions relied upon by the Ld. Advocate fully support his argument. The CBEC in Circular dt.10.02.2012 reiterating its earlier circular of 29.01.2009 has clarified that for the period 1.7.2010 such services provided by the builders / developers will not be taxable. This is also the ratio laid down in the Tribunal decisions cited supra by the Ld. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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