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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 ..... . 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 shown in ST-3 returns (in Rs.) Cenvat Credit Taken Cenvat Credit Utilized Closing Balance 1. 04/2010 to 09/2010 2,89,72,141/- 6,79,570/- 2,69,181/- 2,93,82,530/- 2. 10/2010 to 03/2011 2,93,82,530/- 12,37,867/- 3,14,099/- 3,03,06,298/- 3. 04/2011 to 09/2011 3,03,06,298/- 1,43,442/- 4,90,501/- 2,99,59,239/- 4. 10/2011 to 03/2012 2,99,59,239/- 12,28,761/- 85,04,383/- 2,26,83,617/- 5. 04/2012 to 06/2012 2,26,83,617/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Naveen Khandelwal appearing with Shri Sumit Nema, Advocate for the appellant and the ld. Authorised Representative, Shri R.K. Manjhi for the Revenue. 8. Ld. Counsel for the appellant, at the outset, points out that similar show cause notice was issued for the subsequent period July, 2012 to March, 2014, also proposing to disallow the cenvat credit taken on input and input services vide show cause notice dated 14.10.2014 on similar allegations that cenvat credit is admissible only when such input services /inputs are used for providing any output services alleging that the appellant has availed cenvat credit during the period when mall building was under construction and the appellant was not in a position to provide any output services. It was also alleged that the appellant has uitilised such cenvat credit for payment of service tax on output services as well as for arrears. Whereas they have not disclosed receipt or billing amount for output services in the ST-3 Returns, referring to the CBEC Circulars aforementioned. Similarly, the show cause notice was confirmed vide order-in-original dated 27.07.2017 by the Asstt. Commissioner. The appellant had carried the matter in appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt show cause notice. Hence, instant show cause notice is not protected by provisions of Section 73 (1A) of the Finance Act, 1944. 8.1 Upon going through the case records, I find strong force in the above contention of the appellant. I find that allegation of non-submission of documents/details has not been there in the show cause notice dated 14.10.2014. Also, nowhere in the impugned show cause notice, it is brought on record that original documents for the period covered under impugned show cause notice were called for by the Department and the appellant has failed to submit the same. There is no evidence on records too which indicate that before issuance of show cause notice dated 14.10.2014 the appellant was asked to produce documents/evidences in respect of cenvat credit availed by them, for the period covered under impugned show cause notice. On the contrary, as per submission of the appellant, they vide letter dated 19.06.2015 had submitted CA certified Cenvat Credit Register and in the defence reply to show cause notice they have shown their willingness to produce copy of invoices of cenvat credit if the adjudicating authority desired so. 8.1.1. It means that the show c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in the initial/basic show cause notice dated 17.05.2013 regarding non-submission of documents/details of inputs and input services by the appellant, is not applicable in the context of present show cause notice dated 14.10.2014 issued for subsequent period under the provisions of section 73(1A) of the Finance Act, 1994. 8.3. In view of the above, I hold that finding of the adjudicating authority in respect of non-submission of proper documents/ evidence, is nothing but travel beyond the scope of show cause notice dated 14.10.2014 and hence, I also hold that finding of adducting authority in this regard is not legal, proper and correct. 9. The adjudicating authority has also denied cenvat credit on the ground that the appellant has nether shown any receipt amount not shown even Billed amount in their ST-3 returns for the period July, 2012 to March, 2014 against output service (Renting of Immovable Property) and as per the provisions of cenvat credit rules cenvat credit is admissible only when such input service and materials are used for providing any output service. 9.1 In this context, I find that in the show cause notice dated 14.10.2014 it is alleged that "cenvat cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e department itself, in its cross objection memo filed before the Hon'ble CESTAT in the appeal No.ST/55114/2013-CU(DB), admitted that mall was completed in January, 2010. 9.5. Apart from the above, I also find that there is no provision in law which restricts cenvat credit of input service availed during the period when service receiver is not in a position to provide output service. I also find that the Adjudicating Authority has not cited any specific provision of law in this context. The only condition prescribed in the law is that the input service should be used by a provider of output service for providing a taxable output service and this condition is fulfilled in this case. 9.6. In view of the above, I find that above allegations about not showing any billed amount or receipt amount for provisions of taxable output service in ST-3 returns as levelled in the show cause notice is baseless and factually incorrect. I also find that the adjudicating authority has given his finding in very causal manner, with his eyes closed, without proper examination of facts and even without perusal of case records and completely ignoring the submission made by the appellant before him. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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