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TMI Blog2024 (10) TMI 1404X X X X Extracts X X X X X X X X Extracts X X X X ..... and Serena, appellant obtained Occupancy Certificate on 22.01.2016. The total constructed carpet area of the said two buildings put together was 2,10,640 square feet, out of which by the time Occupancy Certificate was obtained, 21,010 square feet of carpet area remained unsold. As per the levy of service tax, the residential complex for which Occupancy Certificate is received, service tax cannot be levied on the same. From the period from 2013-14 till the Occupancy Certificate was received, appellant had availed cenvat credit of Rs.2,51,02,850/-. It appeared to Revenue that since the cenvat credit so availed has been utilized, cenvat credit apportionable or attributable to unsold carpet area should be recovered from the appellant. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggrieved by the said order, appellant preferred appeal before Commissioner (Appeals). Learned Commissioner (Appeals) relied on the ruling by Hon'ble Delhi High Court in the case of Lally Automobiles Pvt. Ltd. vs. Commissioner reported at 2018 (17) GSTL 422 (Del.) and held that the order passed by the original authority was legal and proper and he did not interfere with the same. Aggrieved by the said order, appeal is before this Tribunal. 2. Heard the learned counsel for the appellant. Learned counsel for the appellant has submitted that the case is not covered by Rule 6 of Cenvat Credit Rules and that Rule 4(7) of Cenvat Credit Rules does not provide for the appellant to wait to take cenvat credit of input services till the output service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Heard the learned AR who has reiterated the finding of learned Commissioner (Appeals) and relied on the ruling by Hon'ble Delhi High Court in the case of Lally Automobiles Pvt. Ltd. (supra). 4. I have carefully gone through the record of the case and submissions. I note that the appellant had availed cenvat credit of service tax paid on input services when the output service was subjected to levy of service tax. I, therefore, find that availment of cenvat credit was in accordance with law. I also note from the proceedings that before receipt of Occupancy Certificate on 22.01.2016 appellant had utilized the entire cenvat credit of Rs.2,51,02,850/- towards payment of service tax on output service. I also note that Service Tax Law does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of input service and, therefore, it was legally entitled to take the credit on the date after the receipt of service bills/challans. Therefore, the availment of Cenvat credit by the respondent is absolutely legal and correct and in accordance with Rule 4(7) of the Rules. As at the time of taking credit, there was no existence of any exempted service, therefore, there is no application of Rule 6. That part of the service was exempted only after obtaining completion certificate and thereafter, the respondent was not required to avail the Cenvat credit on the input service, if any, received after obtaining the completion certificate. The respondent did not avail the Cenvat credit in respect of the services received after obtaining the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service becomes exempted in such case the credit only in respect of inputs lying in stock or is contained in taxable service is required to be paid whereas there is no provision for payment of Cenvat credit equivalent to the input services used in respect of exempted service. Therefore, Cenvat credit availed in respect of input service is not required to be paid back under any circumstances and therefore, the respondent was not legally required to reverse any credit which was availed by them during the period 2010 till obtaining completion certificate i.e. during the period when output service was wholly taxable in their hands, merely because later on, some portion of the property was converted into immovable property on account of receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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