2019 (7) TMI 774

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..... 0.2015. 2. The relevant factual matrix is: 2.1 The appellants are registered under the category of providing Restaurant Services, Accommodation Services, Mandap Keeper Services, Business Auxiliary Services, Cab Operator Services, Health Club And Fitness Centres, Dry Cleaning Services. Vide the aforesaid show cause notice, appellant was alleged to have evaded an amount of Rs. 83,59,428/- during the period from October, 2013 to March, 2014 on the ground that since the appellant has availed the cenvat credit on input services, the benefit of abatement to Notification No. 26/2012-ST dated 20.06.2012 is not available to them. The benefit was also denied on the basis of Rule 2C of Service Tax (Determination of Value) Rules, 2006. Being aggrieve .....

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..... ent of cenvat credit by the appellant. The Appeal is accordingly prayed to be dismissed. 6. After hearing both the parties and perusing the record as well as the Order under challenge, we are of the opinion as follows: 6.1 Foremost the Notification No. 26/2012 dated 28.06.2012 has to be looked into. The relevant entry at Serial No. 6 reads as follows: Sl. No. Description of taxable service Percentage Conditions 6. Renting of hotels, inns, guest houses, clubs, campsites or other commercial places meant for residential or lodging purposes. 60 Cenvat credit on inputs and capital goods, used for providing the taxable service, has not been taken under the provisions of the Cenvat Credit Rules, 2004. 6.2 Perusal thereof clarifi .....

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..... able under Chapters 1 to 22 of the Central Excise Tariff Act, 1985 i.e. the availment of credit only on goods as mentioned above is the condition for availment of the said abetment qua restaurant services. Apparently and admittedly, cenvat credit was availed on input services hence denial of the benefit of the impugned Notification qua restaurant services is also held as unreasonable rather illegal. 8. Coming to the aspect of proportionate availment as has been impressed upon by the learned Counsel, we observe that the Adjudicating Authority below has acknowledged about the proportional availment of the cenvat credit qua the input services but there is no apparent finding to that effect in the impugned Order. The law to this effect is alre .....

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