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TMI Blog2024 (9) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... nt passed in the case of M/s. Alembic Ltd. Vs. Commissioner of Central Excise and Service Tax, Vadodara I [ 2018 (10) TMI 1557 - CESTAT AHMEDABAD] . Otherwise also going by the provision of law such sale of immovable property having been excluded by statute namely by the Finance Act, 1994, under Section 65B(44) from the definition of service that is apparently done taking the constitutional mandate available under Section 366(29) of the Constitution of India, including the same as a component of exempted service through Explanation-3 added to Rule, 6 of the CENVAT Credit Rules, 2004 can t be said to be a validly legislated rule in view of operation of Section 38A of the Central Excise Act, equally applicable to Service Tax matters as covere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1994. Basing on the same observation made by the Audit, show-cause notice dated 09.12.2019 was issued by the then Dy. Commissioner proposing proportional recovery of CENVAT Credit of ₹16,39,155/- in respect of said unsold flats on the date of issue of completion certificate. Show-cause notice also proposed for recovery of interest and penalties, Appellant contested the same unsuccessfully during adjudication process and before the Commissioner (Appeals) and now before this forum seeking necessary relief. 3. During course of hearing of the appeal learned Counsel for the Appellant Ms. Padmavati Patil submitted that confirmation of demand was made by the Dy. Commissioner and the Commissioner (Appeals) also concurred to his finding desp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer of Title in goods or immovable property by sale etc. from the purview of service and Explanation-3 to Rule, 6 of CENVAT Credit Rules, 2004 puts the said activity mentioned under Section 65B under exempted service as defined in Rule, 2 Sub Rule (e) of the CENVAT Credit Rules, 2004, so as to cover it under Rule, 6(1) for proportionate credit availment and therefore, the order passed by the Commissioner (Appeals) need not be interfered with. 5. I have perused the appeal paper book, relevant provisions of law, relied upon judicial decisions on the issue and other material available on record. Going by the judicial precedent that emerged through interpretation of the provision of law, there can be no second opinion that credit eligibili ..... X X X X Extracts X X X X X X X X Extracts X X X X
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