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TMI Blog2018 (11) TMI 1227X X X X Extracts X X X X X X X X Extracts X X X X ..... redit Rules also not sustainable. It is establish in the show cause notice that the service tax under the category of Intellectual Property Service to the tune of ₹ 9,72,352/- was paid before the issuance of show cause notice and interest was also paid. We find that revenue has failed to identify whether the interest paid was sufficient or short and therefore the confirmation of demand with interest on the same and penalty of ₹ 10,000/- is not sustainable. Abatement on Short Terms Accommodation Service, Restaurant Service, Mandap Keeper Service also remains allowed. Appeal allowed - decided in favor of appellant. - ST/50336/2015 & E/50677/2015-CU[DB] - FINAL ORDER NOs-72677-72678/2018 - Dated:- 20-11-2018 - Smt. Arc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice and appellant had availed the benefit of abatement provided through notification No.01/2006-ST dated 01.03.2006 during the year 2011-12 and that during the same period since they had availed Cenvat credit of around ₹ 4.6 lakhs, in terms of condition of Notification No.01/2006-ST appellant were not eligible to avail benefit of abatement and therefore demand on abated value was raised. The service tax demand on abated value of short term accommodation service was raised to the tune of ₹ 72,21,285/- by invoking extended period of limitation. Similarly, demand on abated value of Restaurant Service was raised to the tune of ₹ 44,06,841/- by invoking the extended period and the same in respect of Mandap Keeper Service was &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as further relied on the ruling by Andhra Pradesh High Court in the case of Commissioner of Central Excise Visakhapatnam-II Vs M/s Sai Sahmita Storages Pvt. Ltd. Reported at 2011 (23) STR 341 (AP) and submitted that it was ruled by Hon ble High Court of Andhra Pradesh that without the use of input and input services warehouse could not have been constructed and therefore, Cenvat credit availed on input and input services for construction of warehouse was eligible for discharge of service tax on Warehousing Services after the construction of Warehouse was completed. He has submitted that the ruling by Hon ble Andhra Pradesh High Court was squarely applicable in the present case. He has further submitted that in respect of Intellectual Proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that just because appellant has availed Cenvat credit in the year 2011-12 the revenue has denied the benefit of abatement and confirmed the demand on abated value and that it was responsibility of revenue to establish that such services and inputs have gone into providing services such as Short Terms Accommodation Service, Restaurant Service, Mandap Keeper Service on which Cenvat credit was availed by the appellant during the relevant period. He has submitted that there is no such evidence placed in the show cause notice, therefore, the demand confirmed on the said count is not sustainable. 5. Having considered the rival contentions and on perusal of records, we find that Hon ble Andhra Pradesh High Court has held in the case of M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds or input service that have gone into the output services such as Short Terms Accommodation Service, Restaurant Service, Mandap Keeper Service. We, therefore, do not find the allegations in the show cause notice that abatement through the said notification was not admissible to the appellant, to be sustainable. Therefore, we set aside the demands of ₹ 72,21,285/-, ₹ 44,06814/- ₹ 14,39,148/- and penalty of ₹ 1,40,39,599/-. In the above terms, we do not find the entire impugned Order-in-Original to be sustainable. 6. In view of the above discussions, we set aside the impugned Order-in-Original and allow the appeal filed by the appellant. Since the impugned Order-in-Original is not sustainable, appeal filed by rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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