9911796707
TMI Blog2019 (3) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 till obtaining Completion Certificate, i.e. during the period when output service was wholly taxable in their hands, merely because later on, some portion of the property was converted into immovable property on account of receipt of Completion Certificate and on which no Service Tax would be paid in future. Impugned order not sustainable - further, the amount of ₹ 11,67,545/- paid by the appellant ‘under protest’ the protest is vacated - appeal allowed - decided in favor of appellant. - ST/20074/2019-SM - Final Order No. 20197/2019 - Dated:- 15-2-2019 - MR. S.S GARG, JUDICIAL MEMBER Mr. Badrinath N.R., CA For the Appellant Mr. Madhup Sharan, Asst. Commissioner, AR For the Respondent ORDER Per: S.S GARG The present appeal is directed against the impugned order dated 22.10.2018 passed by the Commissioner (A) whereby the Commissioner (A) has rejected the appeal of the appellant and upheld the Order-in-Original. 2. Briefly the facts of the present case are that the appellants are engaged in providing services relating to Construction of Residential Complex to individual clients and are registered with Service Tax Department for provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ₹ 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 perused the records of the case. 4. Ld. Consultant appearing for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the provisions of CENVAT credit and by ignoring the binding judicial precedents. He further submitted that it is impossible to expect and ascertain as to how many units would actually be sold before/after the date of obtaining the OC when the project is in construction stage. Even the date of obtaining the OC cannot be known and hence the question of not claiming/reversing the CENVAT credit during the relevant period is out of question and is impossible. He further submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant period up to the date of obtaining the OC would not qualify as exempted services and therefore, the provisions of Rule 6 will not be applicable. Further, I find that the issue is squarely covered in favour of the appellant by the decision of Division Bench, CESTAT, Ahmedabad in the case of M/s. Alembic (supra) wherein it has been held by the Division Bench after considering the CENVAT Credit Rules as well as the amendment in Rule 6 by adding Explanation w.e.f. 01.04.2016. It is pertinent to reproduce the relevant findings of the Tribunal in the case of M/s. Alembic Ltd. contained in Para 18 19 as below: 18. From the analysis of all the legal provisions for the purpose 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 individual or proprietor ship firm or partnership firm, the expression, following month and the month of March occurring in sub rule-7 shall be read respectively as following quarter or quarter ending with the month of March From the above rule, it is clear that the assesse is not required to wait till output service is sold to the service recipient. The assesse can take the credit immediately after the day on bill/ challan of input service is received. In the present case, there is no dispute that the appellant have availed the credit after receipt of bill, challan in respect of input service, therefore, the appellant was legally entitled to take the credit on the date after the receipt of service Bills! Challans. Therefore, the availment of CENVAT credit by the appellant is absolutely legal and correct in accordance with Rule 4(7) of CENVAT Credit Rules, 2004. At the time of taking credit, there is no existence of any exempted service; therefore, there is no application of Rule 6. The part of the service was exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
