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TMI Blog2023 (3) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... ax. The Ld. Chartered Accountant appearing on behalf of the appellant submits that when their construction activity is taken up initially, it will not be known as to what percentage of constructed area would be sold and what percentage of area could be retained for leasing out the same. Therefore, they have been taking the Cenvat Credit on various inputs and services as to when they are received by the appellant. However, when a portion of the constructed area is sold, the proportionate Cenvat Credit is reversed by them. He draws attention to the Table at Para 6 of the Grounds of Appeal which is reproduced below:- Particulars October 2007 to March 2008 April 2008 to September 2010 Total Total Credit availed in respect of input services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re eligible for the Cenvat Credit in terms of Rule 2 (l) of the Cenvat Credit Rules, 2004. He relies on the following case laws:- (i) Sai Samhita Storages Private Ltd. Vs. CCE, Vishakhapatnam-II [2010 (255) E. L. T. 91 (Tri-Bang.) The same has been affirmed by the Hon'ble Andhra Pradesh High Court [2011 (2) TMI 400-AP High Court] (ii) Navraratna S G Highway Properties Pvt. Ltd. Vs. CST, Ahemedabad [2012-TIOL-1245-CESTAT-AHM] (iii) Nirlon Ltd. Vs. Commissioner of Central Excise, Mumbai [2016 (2) TMI 417 CESTAT-Mumbai] (IV) Lemon Tree Hotel (Cyber Hills Developers (P) Ltd.) Vs. CC & CE, Hyderabad-IV, [2017] (84) taxmann.com 157 (Hyderabad-CESTAT) (V) CGST & CE, Chennai Vs Dymos India Automotive Pvt. Ltd. [2018 (9) TMI 1135-Madras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le for the Cenvat Credit on such items. Therefore, he submits that the lower Authorities have correctly confirmed demands. 5. Heard both sides. 6. It is seen that the appellant has taken Cenvat Credit of Rs.2,29,99,232/- during the period under consideration. When they are not eligible for Cenvat Credit on account of constructed property which is sold, they have been regularly reversing the Cenvat Credit. These facts are being regularly disclosed in the ST-3 Returns as well as in the accompanying letter submitted to the Range/Division officials. 7. In respect of the constructed portion which is leased out by them, there is no dispute that the Service Tax is being paid on the lease amount received by them. 8. From the case law cited by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involved is squarely covered by the decision of the Ho'ble High Court of Andhra Pradesh. Since the service tax demand itself is not sustainable, the question of imposition of penalty does not arise. The appeal is allowed with consequential relief to the appellants. 1o. In case of CCE Vishakhapatnam II vs. Sai Sahmita Storages (P) Ltd, this decision of the Bangalore Tribunal has availed by the Hon'ble Andhra Pradesh High Court [2011 (2) TMI 400-AP High Court], has held as under:- 9. There is no dispute, in these cases, that the assessee used cement and TMT bar for providing storage facility without which storage and warehousing services could not have been provided. Therefore the finding of the original authority as well as the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s held as under:- 6.2 In view of the ratio of the higher judicial forum and the facts of the case in hand are the same, we hold that the impugned order is unsustainable and liable to be set aside and we do so. 11. The Hon'ble Madras High Court in the case of GST & CE, Chennai vs. Dymos India Automotive Pvt. Ltd. [2018 (9) TMI 1135 Madras HC] has held as under:- 9. The Tribunal took note of the allegations in the said show notice i.e. the assessee was not eligible for input service credit availed under the head 'commercial or industrial construction activities' during the period 2008-09. The Tribunal, after referring to the definition 'input service' as it stood at the material time under Rule 2(3) of the said Rules, pointed out that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion that there is no error in the decision taken by the Tribunal. 12. As the issue in the present appeal is squarely covered by the above decisions, the appeal is required to be allowed on merits and I do so. 13. As per the factual evidence reproduced by the appellant in the form of ST-Returns and letters filed with the Department from time to time with regard to the Cenvat Credit taken and reversed by them in the course of their business, the Department has not made out any case against the appellant towards suppression. This Hon'ble Tribunal vide the Final Order No. 75903/2021 dated 08.09.2021 held that extended period is not invokable in such cases. Therefore, the demand for the extended period is required to be set aside in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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