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TMI Blog2019 (7) TMI 1771X X X X Extracts X X X X X X X X Extracts X X X X ..... up for hearing with the consent of the Learned Authorized Representative for the Department. 2. The facts of the case in brief are that the appellant is engaged in providing the services of supply of tangible goods service as well as a recipient of services of rent -a-cab, security services, manpower supply services, legal services etc. During the verification of books of the Appellant for the period 2008-09 to 2011-12, the Appellant was served with a Show-cause notice dated 15/10/2013 demanding service tax of Rs. 5,01,202/- along with interest and for imposition of penalty under section 78 of the Finance Act, 1994. It was also proposed to recover irregular Cenvat credit of Rs. 21,522/- availed by the Appellant in terms of Rule 14 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Learned A. R. For the Revenue and perused the appeal records. 7. I find that two issues arise for my consideration in the given case. First eligibility of Cenvat credit on air ticket, and travel agency services as availed by the Appellant. Next, imposition of penalty of Rs. 59,328/- under renting of immovable property on the Appellant. As regards the issue of penalty under renting of immovable property service I find that the present issue involved in this appeal is no more res-integra in view of the decision of the Tribunal in the case of R.K. REFRESHMENT & ENTERPRISES (P) LTD. Versus COMMR. OF C. EX., RAIPUR reported in 2018 (14) G.S.T.L. 281 (Tri. - Del.). The relevant paras of the said decision are reproduced below:- "7. Other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of litigation pending before the Apex Court is acceptable. It is also correct that sub-section (2) of Section 80 was inserted to avoid penalizing the assessees as the matter was contentious one and there were several judgments in favour of assessees also. The relevant portion of the Finance Bill in introducing sub-section (2) of Section 80 as quoted in the appeal is as under......6. It is seen that if the assessee fails to avail the benefit of sub-section (2) of Section 80, then the assessee has to be treated as though sub-section (2) of Section 80 did not exist. It nowhere says that in case of failure to avail benefit under subsection (2) of Section 80, the benefit under sub-section (1) of Section 80 will be taken away. As per sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss activity of the assessee either on the count of manufacturing activity or provision of output service. Such services cannot be included to be 'input services' within the meaning of Rule 2(1) of CENVAT Credit Rules, 2004. From the available records, I further observe that the assessee had reversed / paid CENVAT Credit to the extent of Rs. 566/- alongwith interest of Rs. 111/- vide entry serial No. 412 dated 01.07.2013, i.e. before issuance of the Show Cause Notice, against such wrong availment and utilization of total credit of Rs. 21,552/-. In other words, the assessee were rather agreeing to the contentions of audit as well as demands raised in the Show Cause Notice. On this count, I hold that the differential CENVAT Credit to the tune ..... X X X X Extracts X X X X X X X X Extracts X X X X
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