TMI Blog2018 (5) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... should be available for the Cenvat benefit. Since, there is dispute about the period of taking Cenvat credit, the matter should go back to the original authority for ascertaining the period, when the Cenvat credit was taken by the appellant in its Cenvat account - appeal allowed by way of remand. - Appeal No. ST/50489/2017-DB - Final Order No. 51687/2018 - Dated:- 3-5-2018 - Hon ble Mr. S.K. Mohanty, Member (Judicial) And Hon ble Mr. C.L. Mahar, Member (Technical) Shri Anil Sood, Advocate - for the appellant Shri Amresh Jain, D.R. - for the respondent ORDER Per S. K. Mohanty This appeal is directed against the impugned order dated 19.12.2016 passed by the Commissioner of Service Tax, New Delhi. 2. Brief fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poration, Ahmedabad. The ld. Advocate also submits that the appellant did not avail any Cenvat credit from April 2010 onwards and to support such stand, has produced the ST-3 return for the period October 2010 to March 2011. The ld. Advocate further submits that since the credit on the disputed services was taken by the appellant under the un-amended definition of input service (effective up to 31.3.2011), such services should be considered as input service and the Cenvat credit should be available to the appellant. In support of such stand, the ld. Advocate has relied on the decision of this Tribunal, in the case of Navaratna S.G. Highway Prop. Pvt. Ltd. -Vs.- Commissioner of Service Tax, Ahmedabad 2012 (28) STR 166 (Tri.-Ahmd.). 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h eventuality, taking of credit is in conformity with the Cenvat statute. Since taking of Cenvat credit is proper and justified, its utilisation after 01.04.2011 cannot be questioned or disputed by the Department, in view of the fact that taking of Cenvat credit decides its utilisation, according to the convenience of the assessee. The said fact is evident from sub-rule (1) read with sub-rule (4) of Rule 3 of the Rules, 2004 wherein, the assessee has been given the option to utilise the credit so availed for payment of Central Excise duty or service tax for providing output service. Since, the appellant has taken the credit prior to 1.4.2011 and the Mall was also completed before 2011, as confirmed by the appellant, denial of Cenvat benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible. The issue involved is squarely covered by the decision of the Hon ble High Court of Andhra Pradesh. Since the service tax demand itself is not sustainable, the question of imposition of penalty does not arise. The appeal is allowed with consequential relief to the appellants. 7. We find from the case records that the adjudicating authority has held that the Cenvat credit on the disputed services has also been taken by the appellant after the amendment of the definition of input service w.e.f. 01.04.2011. The appellant contended that the entire credit was availed prior to such date of amendment. Since, there is dispute about the period of taking Cenvat credit, we are of the view that the matter should go back to the original aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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