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2013 (9) TMI 669 - HC - Service TaxAppeal against the stay order directing the petitioner to pre-deposit 35% of the Credit - Wrong Utilization of CENVAT credit - The assessee was a real estate company engaged in construction of shopping malls - The appellant had availed CENVAT credit on input services and CENVAT credit on inputs used for construction of buildings – Held that:- Both Judicial Member and the Technical Member agreed that the appellant is not entitled to CENVAT credits on inputs. The appellant got the building constructed from the works contract service provider - The credit of service tax paid by the work contract service provider already stand availed by the appellant - if there was any doubt with regard to any benefit of CENVAT credit on the inputs for construction of building the fact that the appellant had engaged works contract service provider, who had availed the benefit of CENVAT credit by opting for payment of service tax at a lesser rate on the condition of non-availability of credit of duty paid on inputs used in construction of building, such benefit could not have been claimed by the appellant. By an amendment vide Notification dated 10.9.2004 CENVAT Credit Rules 2004 have been amended and by which the input credit on any goods used for construction of buildings, civil structures or parts had been excluded from the meaning "input" under Rule 2 (k). Waiver of Pre-deposit - Whether pre-deposit of 35% of the total Cenvat Credit denied by the order was to be called for admitting these appeals as directed by the Judicial Member – Held that:- There was no error in the orders passed by the CESTAT directing the appellant to deposit 35% of the CENVAT credit - We make it clear that the appellant had been given stay of pre-deposit of the entire CENVAT credit availed of input service and amounts to small fraction of entire liability of CENVAT Credit and input denied, which was still subject matter of the appeal.
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