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TMI Blog2022 (9) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... n the strength of which they availed CENVAT Credit - period post 2007 - HELD THAT:- It is not disputed by the assessee that the services rendered by the assessee and the contract entered into by the assessee be treated as Works Contract and therefore, the assessee is liable to pay the service tax. From the impugned order passed by the Tribunal, it appears that though the learned Tribunal has touched the aspect of wrong/irregular availment/utilization of CENVAT credit while narrating the facts, however, thereafter there is no further discussion at all on irregular/wrong utilization/availment of the CENVAT credit - It was the specific case on behalf of the Revenue that, without producing any invoices and/or other documentary evidences, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has allowed the said appeal preferred by the respondent assessee and has set aside the demand of service tax and also the demand of CENVAT credit irregularly availing/ wrongly utilizing, the Revenue has preferred the present appeal. 2. That the respondent assessee is engaged in the activity of construction of Residential Apartment classfied under the taxable category of Construction of Residential Complex service defined under Section 65(30a) of the Finance Act, 1994 (hereinafter referred to as the Act, 1994 ). The same is registered with the Service Tax Department under the category of Construction of Residential Complex Service . Investigation was carried out on the intelligence gathered by the officers of the Anti-Evasion Unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation Cess)amount of Rs. 5,56,15,882/- [Rupees Five Crore Fifty Six Lakh Fifteen Thousand Eight Hundred and Eighty Two only] for the period November 2006 to September 2010, as detailed in the Annexuxe-1 enclosed, should not be demanded and recovered from them under the proviso to Section 73(1) of the Act. ii. The CENVAT Credit of Rs. 1,73,85,377/- (Rupees One Crore Seventy Three Lakh Eighty Five Thousand Three Hundred and Seventy Seven Only) irregularly availed by M/s SPLDEV, as detailed in Annexure - III, during the period November 2006 to September 2010, should not be disallowed in terms of proviso to Section 73(1) read with Rule 14 of CENVAT Credit Rules, 2004; iii. The CENVAT Credit of Rs. 1,22,53,815/- (Rupees One Crore Twenty T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e service and the receipt of the taxable value thereof, mis4 declaring the taxable value in the ST-3 returns or failed to otherwise declare to the department the correct taxable value received thereof, service tax charged and collected during the relevant period and thus have willfully suppressed the fact of having rendered the taxable services and receipt of the value thereof, with intent to evade payment of Service Tax. 4. Therafter after giving opportunity to the assessee, the Adjudicating Authority confirmed the demand of service tax amount of Rs.5,56,15,882/- under Section 73(2) read with proviso to Section 73(1) of the Act, 1994, the Adjudicating Authority also disallowed the CENVAT credit irregularly availed and wrongly utilized. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18.04.2006, under section 76. However this penalty will be Rs. applicable for the period till 10.05.2008 in view of the the amendment to Section 78 incorporated vide Finance Bill 2008, for their failure to pay service tax to in accordance with the provisions of Section 68 of the Act and the Rules made thereunder, (vii) I impose Penalty of Rs.5000/-(Rupees Five Thousand only) under the provisions of Section 77 of the Act for their failure to file the prescribed ST-3 return within prescribed due dates, in accordance with the provisions of Section 70 of the Act and the Rules made thereunder. (viii) I also impose a penalty of Rs.7,30,01,259/- (Rupees Seven Crores Thirty Lakhs One Thousand Two Hundred and Fifty Nine Only) under Section 78 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted as Works Contract and therefore, the assessee is liable to pay the service tax. 8. Having heard learned counsel appearing for the respective parties and considering the Order-in-original and even the impugned order passed by the learned Tribunal, it appears that the dispute was also with respect to irregular availment/wrong utilization of the CENVAT credit by the assessee. From the impugned order passed by the Tribunal, it appears that though the learned Tribunal has touched the aspect of wrong/irregular availment/utilization of CENVAT credit while narrating the facts, however, thereafter there is no further discussion at all on irregular/wrong utilization/availment of the CENVAT credit. It was the specific case on behalf of the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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