TMI Blog2019 (7) TMI 1771X X X X Extracts X X X X X X X X Extracts X X X X ..... main Section 80 is still available to the appellant considering that the tax liability under renting of immovable service was subject matter of various disputes, amendments, including retrospective amendment. As such, the penalty imposed on this service is waived invoking provisions of Section 80 - thus, the penalty is set aside. CENVAT Credit - travel expenses - HELD THAT:- The actual amount of CENVAT Credit was ₹ 21,552/- and the credits were taken basically against Travelling Agency Service and such services were basically used/consumed by an individual in personal capacity and were not related with the main business activity of the assessee either on the count of manufacturing activity or provision of output service. Such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pient of services of rent -a-cab, security services, manpower supply services, legal services etc. During the verification of books of the Appellant for the period 2008-09 to 2011-12, the Appellant was served with a Show-cause notice dated 15/10/2013 demanding service tax of ₹ 5,01,202/- along with interest and for imposition of penalty under section 78 of the Finance Act, 1994. It was also proposed to recover irregular Cenvat credit of ₹ 21,522/- availed by the Appellant in terms of Rule 14 of the Cenvat Credit Rules, 2004 along with interest and to impose penalty under Rule 15 of the said Rules. 3. The Adjudicating Authority confirmed the entire demand of service tax along with consequential interest and imposed equivalent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el agency services as availed by the Appellant. Next, imposition of penalty of ₹ 59,328/- under renting of immovable property on the Appellant. As regards the issue of penalty under renting of immovable property service I find that the present issue involved in this appeal is no more res-integra in view of the decision of the Tribunal in the case of R.K. REFRESHMENT ENTERPRISES (P) LTD. Versus COMMR. OF C. EX., RAIPUR reported in 2018 (14) G.S.T.L. 281 (Tri. - Del.). The relevant paras of the said decision are reproduced below:- 7. Other than above points, we note that there is a demand for ₹ 11,47,291/- under the category of renting of immovable property service. The appellants are not contesting the tax liability. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontentious one and there were several judgments in favour of assessees also. The relevant portion of the Finance Bill in introducing sub-section (2) of Section 80 as quoted in the appeal is as under 6. It is seen that if the assessee fails to avail the benefit of sub-section (2) of Section 80, then the assessee has to be treated as though sub-section (2) of Section 80 did not exist . It nowhere says that in case of failure to avail benefit under subsection (2) of Section 80, the benefit under sub-section (1) of Section 80 will be taken away. As per sub-section (1) of Section 80 if the assessee proves reasonable cause for failure, then no penalty shall be imposable . . In the case of Mahesh Vakatawarmal Rathod (supra), the Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of Rule 2(1) of CENVAT Credit Rules, 2004. From the available records, I further observe that the assessee had reversed / paid CENVAT Credit to the extent of ₹ 566/- alongwith interest of ₹ 111/- vide entry serial No. 412 dated 01.07.2013, i.e. before issuance of the Show Cause Notice, against such wrong availment and utilization of total credit of ₹ 21,552/-. In other words, the assessee were rather agreeing to the contentions of audit as well as demands raised in the Show Cause Notice. On this count, I hold that the differential CENVAT Credit to the tune of ₹ 21,522/- was inadmissible, recoverable from the assessee. 10. In view of the above, the impugned orders are set aside to the extent of imposition of pena ..... X X X X Extracts X X X X X X X X Extracts X X X X
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