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TMI Blog2024 (8) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... cate, the immovable property is no longer treated as a service rather, it is a mere transfer of the title of goods or immovable property, and hence, for the period October 2014 to June 2017, the appellant was not entitle to avail the credit. The shelter sought to be taken by the appellant on the basis of the Explanation-3 inserted in Rule 6 is misconceived - In the circumstances, the Revenue has rightly invoked the period of limitation under Section 73 (1) of the Act. Penalty - HELD THAT:- The imposition of penalty under Section 78 of the Act is justified and the levy of interest is upheld. There are no merit in the appeal - appeal dismissed. - MS. BINU TAMTA, MEMBER (JUDICIAL) Dr. Arvind Singh, Advocate for the appellant. Shri Vishwajeet Saharan, Authorised Representative for the respondent. ORDER M/s. Shanti Reality Pvt. Ltd. [The Appellant] has filed the appeal against the order-in-appeal no.IND-EXCUS-000-APP-08-2023-24 dated 18.04.2023 passed by the Commissioner (Appeals) upholding the demand of service tax along with interest and penalty imposed by the Adjudicating Authority vide order-in-original dated 17.01.2022. 2. The appellant is engaged in providing taxable services of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o challenged the findings on wilful suppression of facts as noted by the lower authorities, leading to invocation of the extended period of limitation and imposition of penalty. 6. The learned Authorised Representative, on the other hand, reiterated the findings of the Authorities below and submitted that the appellant availed cenvat credit on immovable property constructed by them after issuance of completion certificate, thereby rendering the credit ineligible ab initio . Referring to the provisions of Section 65B (44)(a) and Section 66E of the Act, the learned Authorised Representative submitted that once a completion certificate for a project is issued, further sale of the immovable property is mere transfer of title in immovable property by way of sale, gift, or in any other manner and the same is not included in the definition of service . In the present case, after the issuance of the completion certificate on 20.12.2012, the appellant was not a provider of output service and, therefore, the credit availed and utilised during the period, October 2014 to June 2017, was ineligible under Rule 3(1) of the Act. It was further submitted that the appellant had not apprised the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly reflected the true legal position that once the completion certificate is issued, the appellant would not be liable to pay service tax and logically will not be eligible to avail the Cenvat credit. The insertion of Explanation would not really extend the implementation of the substantive provisions. The position would be the same even prior to 01.04.2016 as the provisions of Section 65B and 66E have been there in the Finance Act, much earlier. 9. The next submission raised by the learned counsel for the appellant was that Rule 6 of CCR cannot be invoked when the credit availed by them was eligible at the time of availment but the same became ineligible later on. The appellant has misconstrued the provisions of law as well as the factual matrix that the credit in the present case was availed after the completion certificate was issued and, therefore, it rendered the credit ineligible ab initio . 10. The observations of the Delhi High Court in the case of M/s. Lally Autombiles Pvt. Ltd. Versus Commissioner (Adjudication), Central Excise [ 2018(7)TMI 1679-Delhi High Court=2018(17)GSTL 422(Del)=2019 (69) GSTR 375 (Delhi) ] (Adjudication), Central Excise are relevant to be taken no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that eligibility/entitlement to credit has to be examined only at the time of receipt of input service and once it is found to be availed at a time when output service is wholly taxable, and the said credit is availed legitimately, the same cannot be denied and/or recovered unless specific machinery provisions are made in this regard. As per above TRU clarification dt.28.2.07, even if one assumed sale of immovable property after Completion Certificate to be exempt service even going by the findings in the impugned order, even then there is no legal requirement to reverse any credit availed on input services in the past (prior to obtaining Completion Certificate) at all. 12. The distinguishing features are further spelt out in the order in following terms:- At the time of taking credit, there is no existence of any exempted service, therefore, there is no application of Rule 6. The part of the service was exempted only after obtaining completion certificate. Thereafter, the appellant was not required to avail the cenvat credit on the input service, if any, received after obtaining the completion certificate. In the present case, the appellant have either not availed the cenvat cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credits were clearly impermissible. In these circumstances, this Court finds no infirmity with the concurrent findings of the lower authority and the CESTAT, which concluded that Show Cause Notice and recoveries were in order. The aforesaid decision of the Delhi High Court has been affirmed by the Supreme Court vide order dated 01.04.2019 as reported in 2019(24) GSTL J115 (SC), which reads as under: We have heard learned counsel appearing for the appellant and perused the impugned order passed by the High Court of Delhi. In our considered view, the reason assigned by the High Court in passing the impugned order needs no interference as the same is in consonance with law. Accordingly, there is no merit in the appeal and it is dismissed. 14. The appellant is trying to twist the facts by saying that they are talking about the credit taken before the issuance of completion certificate, however, the Adjudicating Authority has rejected the same, observing as:- As per the allegation leveled in the notice, the Noticee continued to avail credit even after the cut-off date of 20.12.2012 of their eligibility to avail credit. The Noticee have certainly erred in their reply. They have been talk ..... 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