TaxTMI 
TaxTMI 
2024 (5) TMI 803
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....which were unsold when the Completion Certificate (CC in short) was not issued by the Municipal Authorities. Once the CC is issued, no service is involved since the same amounts to sale of constructed units. Therefore, as per the Appellant, no Service Tax is required to be paid. An audit was carried out by Group 1 of Audit Team, Service Tax Commissionerate, Kolkata. Pursuant to this audit, the Officials have taken a view that the Appellant has taken the Cenvat Credit in respect of the exempted service i.e. in respect of unit which were sold after the CC. The audit has held that the Appellant is required to reverse Rs. 22,05,781/- in terms of Rule 6(3A) of Cenvat Credit Rules, 2004. The Appellant paid the same by reversing Rs. 7,13,932/- und....
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....f Rs.14,91,849/-. Being aggrieved, the Department filed an Appeal before the Commissioner (Appeals). The Commissioner (Appeals) vide the impugned OIA has set aside the impugned OIO which has resulted in the refund being denied to the Appellant. Being aggrieved, the Appellant is before the Tribunal. 4. The Learned Counsel submits that admittedly they have been discharging the Service Tax after taking abatement in terms of Serial No. 7 of Notification No. 1/2006-ST dated 1/03/2006 and as per the Serial No. 12 of Notification No. 26/2012-ST dated 20/06/2016 with effect from 01/06/2012. The Audit carried out by the Group 1 of the Audit Team raised the issue that the Appellant has taken the Cenvat Credit even though they were providing exempt....
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....ible. As per him, this Notification is conditional Notification granting the abatement of 70% subject to the condition that no Cenvat Credit is taken. The Learned Counsel submits that this issue was not part of the Show Cause Notice at all. Therefore, the Commissioner (Appeals) going into this issue and allowing the Revenue's Appeal amounts to traversing beyond the scope of Show Cause Notice. The Counsel submits that the impugned OIA is required to be set aside on this count alone. 5. The Learned AR representing the Revenue submits that the Commissioner (Appeals) has allowed the Revenue's Appeal on two counts:- (i) He has held that the Appellant is required to reverse Cenvat Credit in respect of units which are sold after the CC....
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....otice, the details of Cenvat Credit taken as per ST-3 Returns have been given in the Table. This Table shows the Cenvat Credit taken from April 2012 to March 2013. Show Cause Notice has specifically noted the following points:- 1. As per their earlier or "wrong" calculation, exactly what was wrong which resulted in or made them to arrive at the reversible amount of Rs.22,05,781/- only. 2. As per their ST-3 Returns filed by them, the amount of Cenvat Credit availed during the said period is shown as Rs. 40,01,832/- only. 3. As per their earlier or "wrong" calculation, the amount of Cenvat Credit availed during the said period is shown as Rs. 38,66,487/- only [enclosed as Annexure-A] 4. As per their letter ....
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.... not known since neither side has filed the copy of the Revenue's Review Order Order and Grounds taken by the Revenue. The Commissioner (Appeals) has passed the Order to the effect that the Appellant is not eligible to take full Cenvat Credit since they were also providing exempted service in the form of sale of units after the issuance of Completion Certificate. He has also dealt with the issue as to whether the Appellant can take the benefit of Cenvat Credit as well as abatement when they are following the procedure given under Notification No. 1/2006-St as amended from time to time. As to whether the Commissioner (Appeals) has traversed beyond the scope of SCN can be seen only after going through the Department's Grounds before him are c....