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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 ..... er for decision. Appeal No.ST/50336/2015 is filed by M/s Sincere Developers Pvt. Ltd. (who shall herein after referred as appellant). Appeal No.E/50677/2015 is filed in respect of service tax by revenue. 2. Brief facts of the case are that the appellants are a luxury hotel engaged in providing various facilities in the said luxury hotel. Revenue had conducted enquiry and on the basis of enquiry, appellants were issued with a show cause notice dated 22.10.2013 wherein it was alleged that the appellant had availed Cenvat credit of Rs. 31,83,075/- during the period from 2008-09 to 2010-11 whereas during the said period they were not providing any output service and therefore the said Cenvat credit was not admissible to them. It was further al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al before this Tribunal. Revenue was aggrieved by that part of the impugned Order-in-Original through which on confirmed demand Original Authority has failed to direct the appellant to pay interest under the provisions of Section 75 of the Finance Act, 1994. 3. Heard the learned A.R. for revenue. He has submitted that it was responsibility of Original Authority to direct the appellant to pay interest on the demand of service tax confirmed by him and therefore, he pressed to allow the appeal filed by revenue. 4. Heard the learned Counsel for appellant. He has submitted that Cenvat credit of around Rs. 31 lakhs availed by the appellant during the period from 2008-09 to 2010-11 was in respect of construction of the Hotels and provision of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and could have specified the interest to be paid by appellant and further submitted that it was wrong on the part of the Original Authority who have confirmed the demand of Rs. 9,72,352/- when only interest was demanded on that amount through the show cause notice. Learned Counsel further submitted that revenue has totally misunderstood the condition of Notification No.01/2006-ST dated 01.03.2006. He has stated that the abatement provided through the said show cause notice was not admissible if Cenvat credit of duty paid on inputs, capital goods are service tax paid on input services was availed as Cenvat credit and such inputs, capital goods and input services are used for provision of such services. He has further submitted that just beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther, we do not find Rs. 5,000/- penalty imposed under Rule 15A of Cenvat Credit Rules to be sustainable. We, further, note that it is establish in the show cause notice that the service tax under the category of Intellectual Property Service to the tune of Rs. 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 Rs. 10,000/- is not sustainable. On perusal of condition in the Notification No.01/2006-ST dated 01.03.2006, we note that abatement is not admissible if inputs, capital goods, and Input Services on which Cenvat credit is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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