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TMI Blog2020 (10) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... shops/space in the mall on lease /licence basis. The said mall, other than the shops includes family entertainment centres, multiplexes, etc. and other allied activities. The appellant had taken service tax registration on 19.02.2007 under various categories of services including renting of immovable property service, advertisement service, business support service, security service, legal consultancy service, etc. The mall is in operation since October, 2009. The appellant has been earning income from advertisement, renting of immovable property, maintenance charges, etc., on which they are paying service tax. The appellant has also availed credit on input services received like security services, repair and maintenance service, legal and professional services, etc. The appellant has also been filing regular ST-3 Returns. 2. The Revenue noticed that the appellant is taking cenvat credit on input and input services as evident from their ST-3 Returns for the period April, 2010 to June, 2012. The details of credit taken and utilised are as follows: Sl. No. Period of ST-3 Returns Filed CENVAT Credit Opening balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the appellant appears to be inadmissible. Consequently, it appeared that the appellant is in default in payment of service tax on renting of immovable property for the period April, 2011 to November, 2011 amounting to ₹ 48,80,147/- and for short payment of service tax for the period October, 2011 to March, 2012 amounting to ₹ 18,86,531/- totalling ₹ 67,66,678/-. It further appeared that cenvat credit of ₹ 5,96,16,727/- availed by the appellant upto March, 2010 has been disallowed vide order-in-original dated 26.09.2012. Accordingly, vide show cause notice dated 17.05.2013, it was proposed to demand cenvat credit of ₹ 36,48,409/-, proposed to be disallowed and further demand of service tax for ₹ 67,66,678/- along with interest and proposal to imposed penalty. The show cause notice was adjudicated on contest by the Commissioner. The proposed demand for disallowance of cenvat credit as well as for demand of service tax was confirmed along with equal amount of penalty under Rule 15(3) of Cenvat Credit Rules/Section 78 of the Finance Act. 6. Being aggrieved, the appellant is in appeal before this Tribunal. 7. Heard the ld. Counsel, Shri N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to proceed step by step to check facts of the case, legal provisions and findings of the adjudicating authority vis-a-vis allegation made in the show cause notice and submission made by the appellant. 8. As regards findings of the adjudicating authority that the appellant had not provided documents, details/birfurcation of inputs and input services on which cenvat credit taken, I find that the appellant has contested that at no point of time department asked them to produce cenvat documents and prove legality of cenvat credit so availed. It is also contested by the appellant that no such charges were framed in the show cause notice but the learned adjudicating authority has made this point in his finding a reason for confirmation of demand. This finding of learned adjudicating authority is not legal and it is a journey beyond show cause notice. The appellant has also contested that demand of cenvat documents before issue of show cause notice dated 17.05.2013 was period specific on the basis of which, it can not be held that documents for onward period was demanded but the appellant has not submitted documents . This is a difference between facts of show cause notice dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then service of such statement shall be deemed to be service of notice on such person, subject to the condition that the grounds relied upon for the subsequent period are same as are mentioned in the earlier notices. 8.2.1. I find that it was alleged in the initial/basic show cause notice dated 17.05.2013 (which covered period from April, 2010 to June, 2012) that despite of repeated demand of the department, the appellant had not produced details/documents related to cenvat credit availed by them. However, I find that no such demand was made by the department to produce documents/evidences in respect of cenvat credit availed by the appellant during the period July, 2012 to March, 2014. Therefore, the facts in the present show cause notice are different than the initial /basic show cause notice dated 17.05.2013. The demand of cenvat documents by the department for verification, before issuance of initial/basic show cause notice dated 17.05.2013, were period specific which can not be taken as ground for denial of cenvat credit for subsequent period unless department called such documents specifically for subsequent period involved in the impugned show cause notice. 8.2.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ST-3 Returns, I find force in the above contention of the appellant and observed that apart from many other services, the appellant had shown a handsome income from the Renting of Immovable Property Service and paid service tax thereon. The details of such income shown in their ST-3 Returns are as under:- Period of ST-3 Return Total income from renting of immovable proper (Rs.) 1 07/2012 to 09/2012 3,01,77,259/- 2 10/2012 to 03/2013 3,77,06,936/- 3 04/2013 to 09/2013 6,51,67,471/- 4 10/2013 to 03/2014 4,19,92,457/- 9.4 Thus, I find that above allegation was made in the show cause notice dated 14.10.2014 without proper examination of facts, with assumption that the Mall building is under construction and the appellant is not in a position to provide any output taxable servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of appeal submissions made by the appellant. 11. As regards the allegation in the show cause notice about utilisation of already disallowed credit by the appellant and confirmation thereof by the Adjudicating Authority, the contention of the appellant is that this allegation is factually incorrect. In this regard, I find that entire credit of ₹ 31,73,225/- sought to be demanded in this case has been availed afresh during the period of impugned show cause notice as evident from para 8 of the said show cause notice. Hence, I hold that this allegation is not sustainable being factually incorrect. 12. As regards imposition of penalty and recovery of interest, I find that the appellant is entitled to avail cenvat credit in dispute and therefore imposition of penalty and recovery of interest is not lawful. 13. In the light of facts and circumstances of the case, as discussed in details in foregoing paras, I hold that the impugned order is not legal, proper and correct and hence not sustainable in law. Therefore, I set aside the impugned adjudication order and allow the appeal. 14. Appeal is disposed of accordingly. 9. Ld. Counsel for the appellant fur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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