TMI Blog2018 (12) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... ention service, Banking and Financial Service, Business Auxiliary Service, Internet café, restaurant service and accommodation services. The input service credit was availed by the appellant on the construction services which were used for setting up of the premises from where the output services were rendered by the appellant and on the internet café and security services for the same premises from where the output services were to be rendered by the appellant - in view of SRule 6 (5) thereof no question of denial and reversal of credit, therefore, at all arises - credit allowed. Interest - Penalty - Held that:- Demand of interest as well as penalty set aside. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No.S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944. The demand as proposed was confirmed by the order of Additional Commissioner bearing No.115 dated 30th September, 2014. Being aggrieved, an appeal was preferred before Commissioner (Appeals), who has partially allowed the appeal thereby dropping the demand of interest of ₹ 3,67,731/- on the amount of Cenvat Credit already reversed by the appellant. However, the demand of Service Tax of ₹ 6,49,387/- alongwith the interest under Section 75 of the Act and the penalty except the reduced penalty as earlier imposed under Section 78 of the Act was confirmed. The penalty imposed under Section 76 of the Act was also set aside by invoking the provisions of Section 80 of the Act. Still being aggrieved, the assessee-appellant is befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se arguments has submitted that the wrong availment of cenvat credit would not have come to the notice of the Department unless and until the audit in question would have been done. Despite the duty of self declaring the correct facts, the concealment or the misrepresentation of relevant fact entitles the Department to invoke the extended period of limitation. Hence, present is not the case of show cause notice being barred by time. With respect to the merits of the present case, the order of Commissioner (Appeals) has been justified, impressing upon no infirmity therein, the appeal is accordingly prayed to be dismissed. 5. After hearing both the parties, the considered opinion of mine with respect to the various demands herein is as fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es include the services used in relation to setting up, modernization, renovation of premises of provider of output services. In the case in hand, the definition is reproduced as above categorically will apply and the clarification given by the Board in CBEC Circular dated 04.01.2008 is going beyond the definition as reproduced is herein above. We find that similar issue as to eligibility to avail the CENVAT credit on design and engineering of pipe line, services rendered by the pipeline laying of contractors, was denied int he case of Reliance Gas Transportation Infrastructure Ltd., (Supra), holding that these services were utilized for being into existence an immovable property. The Bench after considering the definition of input services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The Cenvat Credit Rules, 2004 were amended in exercise of the powers conferred by Section 37 of the Central Excise Act, 1944 with effect from 7-7-2009, the date on which it was notified by the Central Government from the date of the notification. According to learned Counsel for the appellant, this amended definition would apply only to the factory or manufacturer and would not apply to the service provider. According to him, either before the amendment made in the year 2009 or thereafter, the appellant was neither factory nor manufacturer and he has only constructed jetty by use of cement and steel for which he was entitled for input credit as jetty was constructed by the contractor, but the jetty is situated within the port area and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit stands available to the appellant. The issue is otherwise no more res-integra as it was already been settled in appellant s own case titled as M/s. Lemon Tree Hotels Pvt. Ltd. vs. C.S.T., Chennai reported in 2018 (1) TMI 1215 wherein the decision of Tidel Park Ltd. vs. C.S.T., Chennai reported in 2010 (18) STR 642 was relied upon. It was held as follows:- 2. I have heard both sides and find merit in the submission of the assessees that they are entitled to the whole of the credit of the service tax paid on taxable service as specified in 17 specified categories covered by Rule 6(5) as such service is not used exclusively in or in relation to the providing of exempted services. Rule 6(5) is a non obstante clause and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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