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TMI Blog2019 (11) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 75 and also imposed penalty under Section 77(2) amounting to Rs. 10,000/- and equal penalty under Section 78 of the Finance Act, 1994. 2. Briefly the facts of the present case are that the appellant has been rendering construction of residential complex service, constructing service including commercial buildings and renting of immovable property w.e.f. 01/07/2012. During the course of audit of the records of the appellant, it was noticed that the appellant had availed wrong input service CENVAT credit to the extent not used in construction of unsold flats on which completion certificate was already issued, input service CENVAT credit contained input service for which payment of service tax was not made within the stipulated ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d records. 4.1. The learned consultant for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the appellant had undertaken the construction work from the month of September 2012 and completed on 24/02/2016 (Pinnacle Block A) and on 06/08/2015 (Pinnacle Block B). He further submitted that during the course of construction, they had availed the services of sub-contractors, architects and other services providers, and availed the CENVAT credit on the basis of bills given by the service providers, which are duly eligible under Rule 2(l) of the CENVAT Credit Rules, 2004 (CCR, for short) as directly in relation to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT credit once rightly availed cannot be reversed because of some subsequent events and for this submission, he relied upon the following decisions:- i. CCE Vs. TAFE Ltd. (Tractor Division) [2011(268) ELT 49 (Kar.)] ii. CCE Vs. TAFE Ltd. (Tractor Division) [ 2015(322) ELT 864 (Kar.)] 4.4. It is his further submission that stock of unsold flats / sale of completed flats is not an 'exempted service' as defined under Rule 2(e) of CCR. Sale of completed flats is specifically excluded from the scope of term 'service' under Section 65B(44) of the Act and hence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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