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The ruling addresses the issue of proportionate reversal/recovery of CENVAT Credit for unsold flats available on the day of issuance of completion/occupancy certificate to the builder. The key points are: Credit eligibility is to be examined on the date of receipt of input services, not governed by later developments like property conversion into immovable property after receiving completion certificate, as per the Alembic Ltd. case. Sale of immovable property being excluded from the definition of service u/s 65B(44) of the Finance Act, 1994, and including it as an exempted service through Explanation-3 of Rule 6 of the CENVAT Credit Rules, 2004, cannot be considered a validly legislated rule due to Section 38A of the Central Excise Act and Section 83 of the Finance Act, 1994. The order of the Commissioner of GST & Central Excise (Appeals Thane), Mumbai is set aside, and the appeal is allowed.
The ruling addresses the issue of proportionate reversal/recovery of CENVAT Credit for unsold flats available on the day of issuance of completion/occupancy certificate to the builder. The key points are: Credit eligibility is to be examined on the date of receipt of input services, not governed by later developments like property conversion into immovable property after receiving completion certificate, as per the Alembic Ltd. case. Sale of immovable property being excluded from the definition of service u/s 65B(44) of the Finance Act, 1994, and including it as an exempted service through Explanation-3 of Rule 6 of the CENVAT Credit Rules, 2004, cannot be considered a validly legislated rule due to Section 38A of the Central Excise Act and Section 83 of the Finance Act, 1994. The order of the Commissioner of GST & Central Excise (Appeals Thane), Mumbai is set aside, and the appeal is allowed.
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