TMI Blog2019 (11) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the Tribunal cited supra wherein it has been consistently held that during the relevant period, Rule 6 was not applicable. In this case, the period involved is prior to the amendment in the Rule 6(1) of CCR, 2004 - This Tribunal in the case of M/S. TPL DEVELOPERS VERSUS COMMISSIONER OF CENTRAL TAX, BANGALORE NORTH [ 2019 (3) TMI 37 - CESTAT BANGALORE] has held that the assessee was 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 hand, merely because later on, some portion of the property was converted into immovable property on account of receipt of completion certificate and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed time period and in the case of flats for which completion certificate was issued delayed / short payment of service tax was noticed. Based on the audit observations made during the audit, a show-cause notice dt. 30/05/2017 was issued to the appellant with proposal for (i) recovery of input service CENVAT credit of ₹ 21,11,755/- should not be recovered inasmuch as the same was not used for provision of taxable output service; (ii) demand of service tax of ₹ 7,17,338/- towards service value received before receipt of completion certificate of residential flats and (iii) CENVAT credit of ₹ 57,733/- should not be recovered inasmuch as payment towards receipt of such service was not made by the appellant. it was also propose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Credit Rules, 2004 (CCR, for short) as directly in relation to provision of service. He further submitted that during the relevant period, there was no provision under Rule 6 of CCR for reversal of proportionate amount of CENVAT credit. Subsequently Notification No.13/2016- CE(NT) dt. 01/03/2016 was issued, inter alia, amending Rule 6(1) of CCR and through this amendment explanation (3) was inserted in this rule which is as follows:- For the purpose of this rule, exempted services as defined in clause (e) of Rule 2 shall include an activity, which is not a service as defined in Section 65B (44) of the Finance Act, 1994. 4.2. He further submitted that the relevant period in the present case is prior to the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence it cannot fall under the definition of term exempted service . He also submitted that the appellant has declared the CENVAT credit in the ST- 3 returns filed during the period from September 2012 onwards and Department has not at all objected regarding the availment of CENVAT credit and hence penalty under Section 77(2) is not tenable. He also submitted that there is no allegation of fraud, collusion, willful misstatement, suppression of facts or contravention of any of the provisions of the Finance Act, 1994 and hence imposition of penalty under Section 78 does not arise. 5. On the other hand, learned AR defended the impugned order. 6. After considering the submissions of both sides and perusal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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