TaxTMI 
TaxTMI 
TaxTMI 
2024 (8) TMI 604
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.... the same. 3. Show cause notice dated 28.09.2020 was issued on the basis of service tax audit that the appellant continued to avail the Cenvat credit and have taken the credit of Rs.9,59,263/- from October 2014 to June 2017 on 'BCM Paradise' even after completion certificate was received on 20.12.2012. Accordingly, the said amount was demanded along with interest and penalty. The Adjudicating Authority confirmed the demand of Rs.2,06,443/- along with interest under Section 75 and penalty under section 78 of the Act and dropped the demand of Rs.7,52,820/- pertaining to the period, October 2014 to March 2015, as time barred. On appeal, the order-in-original was affirmed by the impugned order. Hence, the present appeal has been filed. 4. We have heard Dr. Arvind Singh Chawla, Advocate for the appellant and Shri Vishwajeet Saharan, Authorised Representative for the respondent and perused the records of the case. 5. The learned counsel for the appellant has relied on the notification no.13/2016-CE (NT) dated 01.03.2016, whereby Explanation-3 was inserted in Rule 6 of CCR where the exempted service under Rule 2(e) included an activity which is not a service as defined under Section ....
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....pellant by the Gram Panchayat, Indore on 20.12.2012. ii). The appellant availed the Cenvat credit during the period, October 2014 to June 2017, i. e., after the issuance of the completion certificate. 8. The statutory provisions to decide the issue of eligibility of Cenvat Credit needs to be appreciated. Section 65B(44)(a) defines 'service' which means an activity carried out by a person for another, for consideration and includes a declared service, but shall not include transfer in the title of goods or removable property by way of sale, gift, or any other manner. Coupled with this, it is necessary to examine the provisions of 66E, which provides that following shall constitute 'declared services', namely, "a). renting of removal, property, b). construction of a complex, building, civil structure, or a part thereof, including a complex or building intended for sale to a buyer, wholly or partly, except where the entire consideration is received after issuance of completion certificate by the competent authority." Reading the two provisions together, it appears that construction of a complex falls under the category of 'declared service' but once completion certificate ....
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....claiming input-service tax credit on an output which is neither a service nor excisable goods. There is no provision to cover situations where an assessee is providing a taxable service and is undertaking another activity which is neither a service nor manufacture. In such a situation, the only correct legal position appears to be that it is for the assessee to segregate the quantum of input service attributable to trading activity and exclude the same from the records maintained for availing credit." 11. The learned counsel for the appellant has placed reliance on the decision of this Tribunal in M/s. Alembic Ltd., (supra), which has been affirmed by the Gujarat High Court (supra), however, I find that the learned Bench reiterated the principle that the appellant cannot avail full credit on input services received after obtaining completion certificate. The view taken in the said decision was peculiar to the facts of that case, which are distinguishable from the present case, which is evident from the paragraph given below:- "11. We accordingly of the view that having taken only proportionate Credit on input services after receipt of Completion certificate, duly backed by....
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.... after obtaining the completion Certificate." Consequently, the Tribunal held that the appellants were 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 issuance of completion certificate and on which no service tax would be paid in future. Thus, it is because of the peculiar facts and circumstances of that case on which the Tribunal decided the issue in favour of the appellant. Thus, the relief granted by the Tribunal in M/s. Alembic Ltd. (supra) were on different footing where the credit was availed on input services before the completion certificate was issued. The present case is clearly distinguishable as the appellant claimed the credit much later the completion certificate was issued. 13. The contention raised by the appellant that the credit cannot be reversed for the period other than current period is unsustainable for the simple reason that the appellant was aware that the cenvat credit has been a....