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TMI Blog2019 (3) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial Complex" to individual clients and are registered with Service Tax Department for providing services relating to "Construction of Residential Complex" and "Works Contract". Investigation by Department revealed that the appellant has undertaken the construction of only one residential project called 'SEPIA' (formerly called '228') consisting of five floors, with one flat on each floor measuring approximately 5200 sft. The appellant has received the Occupancy Certificate (the 'Completion Certificate' or 'OC') by which date two apartments had been sold. Verification of the ST-3 Returns revealed that the appellant was availing input credit and utilizing the same to pay the Service Tax. The third flat was sold after the receipt of the OC a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to reverse the same, a SCN was issued to the appellant demanding CENVAT credit amounting to Rs. 1200849/- availed during the period from 01.10.2013 to 12.08.2014 and further CENVAT credit amounting to Rs. 2,83,861/- availed after the receipt of Occupancy Certificate i.e. for the period from 01.11.2014 to 31.03.2016 and also proposed penalty and interest. After following the due process, the Original Authority confirmed the demand of Rs. 11,67,222/- and the amount already paid by the appellant under protest was appropriated and also imposed penalty under Rule 15(3) read with Section78 of the Finance Act. Aggrieved by the said order, the appellant filed appeal before the Commissioner (A) who rejected the same. 3. Heard both sides and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of reversal of CENVAT credit or restricting the availment of CENVAT credit, includes an activity which is "not a service" as defined under Section 65B (44) of the Finance Act, 1994. He further submitted that amendment which was effective from 01.04.2016 is not applicable in the present case because the period under appeal is from October 2013 to March 2016. The Ld. Counsel further submitted that on an identical issue, the Division Bench of the CESTAT, Ahmedabad in the case of M/s. Alembic Ltd. Vs. CCE, Vadodara-I, 2018 (10) TMI 1557- CESTAT Ahmedabad has decided the issue in favour of the assessee by holding that in such situation, there is no question of reversal of CENVAT credit. He further submitted that the facts in the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of CENVAT credit in respect of input service, we find that before the completion certificate, the service of the appellant was very much taxable during which period the appellant received input service. The relevant sub Rule (7) of Rule 4 of CCR, 2004 reads as under: Rule 4(7) 4(7) The CENVAT Credit in respect of Input service shall be allowed, on or after the day on which the invoice, bill or as the case may be, challan referred to in Rule 9 is received: Provided that in case of an input service where the service tax is paid on reverse charge by the recipient of the service, the CENVAT credit in respect of such input service shall be allowed on or after the day on which the payment is made of the value of input service and the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1 The amount mentioned in this sub rule, unless specified otherwise, shall be paid by the manufacturer of goods or the provider of output service by debiting the CENVAT credit or otherwise on or before the fifth day of the following month except for the month of March, when such payment shall be made on or before 31stMarch. Explanation -Il If the manufacturer of goods or the provider of output service, fails to pay the amount payable under this sub rule, it shall be recovered, in the manner as provided in rule 14, for recovery of CENVAT credit wrongly taken. Explanation -Ill In case of manufacturer who avails the exemption under a notification based on the value of clearance in the financial year and service provider who is an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice. For this reason also Rule 6 has no application for the period after obtaining the completion Certificate. In case of service becomes exempted at a later stage, unlike the provision for manufactured goods provided under Rule 11(1)(2) and (3). there is no such provision in respect of the service. The only provision for the service is provided under Sub-Rule (4) of Rule 11 which reads as under: 11(4) A person provider of output service shall be required to pay an amount equivalent to the CENVAT credit, if any, taken by him in respect of inputs received for providing the said service and is lying in stock or is contained in the taxable service pending to be provided, when he opts for exemption from payment of whole of the service tax l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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