TMI Blog2021 (8) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant - the matter needs to be remanded back to the Original Authority with a direction to verify the quantum of credit available in the books and reversal made by the appellant to determine the exact demand of tax from the appellant, if any. Short payment of service tax - HELD THAT:- This demand has been accepted by the appellant but as per the submission of the appellant that this can be adjusted out of closing balance of ₹ 9,19,950/- remaining unutilized as on 30.06.2017 or as against the amount already excess reversed by him and the same is permissible as per Circular dated 28.03.2012. Further, this adjustment of short paid tax will also be considered by the Original Authority after verification of the quantum of credit in the books of the appellant and the reversal made by them as submitted by the learned Consultant. Demand of interest - HELD THAT:- There was a sufficient balance in the CENVAT credit account of the appellant during the relevant period and therefore by applying the ratio of the Hon ble Karnataka High Court in the case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX LARGE TAXPAYER UNIT, BANGALORE VERSUS M/S BILL FORGE PVT LTD, BANGALORE [ 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition of penalty under Section 76 and Section 78 of the Finance Act. The Assistant Commissioner of Central Excise and Central Tax, Udupi vide his OIO dated 26.09.2019 confirmed the demand of ₹ 11,38,618/- on ineligible CENVAT credit which are not related to taxable service, confirmed the demand of service tax of ₹ 1,52,346/- for the period from October 2015 to March 2016, along with interest and also imposed equal penalty. Further, he confirmed the demand of interest of ₹ 22,183/-. The demand of service tax of ₹ 13,18,113/- and ₹ 2,11,302/- was dropped. Aggrieved by the OIO, the appellant filed appeal before the Commissioner who rejected the appeal of the appellant. Hence, the present appeal. 3. Heard both the parties and perused the records. 4. Learned Counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts, the law and the binding judicial precedents. He further submitted that the three demands have been raised by the Department in the impugned order namely: (A) Reversal of CENVAT credit in relation to flats remaining unsold as on the date of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at even assuming Rule 6 has to be applied then the computation of reversal should be made in terms of formula prescribed in Rule 6(3A) of CCR (as inserted vide notification no. No.13/2016 w.e.f 01.04.2016). He further submitted that as per the formula the reversal of common input services taken in a financial year in proportion to exempted turnover to total turnover in that financial year. According to the learned Consultant, the amount so computed is worked out to be ₹ 1,79,776. He also submitted that there is no provision in CENVAT Credit Rules which requires computation of reversal amount based on unsold area/ total area. He further submitted that there is excess reversal of ₹ 25,29,168 (Debit in CENVAT credit register of ₹ 27,08,994 minus Actual reversal U/R 6(3A) of CCR of ₹ 1,79,776) which is required to be adjusted. He further submitted that the impugned order seems to have ignored the provision and mechanism of reversal required to be followed under the law. He further submitted that the appellant voluntarily reversed CENVAT credit of ₹ 27,08,994 by debiting CENVAT credit register on 30.06.2017 and informed the Audit Officer vide letters dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the submissions of both the parties and perusal of the material on record, I find that the Department has confirmed the demand of ₹ 11,38,618/- in respect of the unsold flats whereas as per the appellant, they are required to reverse only ₹ 1,79,776/- in terms of the formula under Rule 6 (3A) and both the authorities have wrongly quantified the amount. Further, I find that as per the submissions of the appellant, they have reversed the credit of ₹ 27,08,994/- in their books of accounts and submitted the complete details to the Department for verification but the same reversal was not considered for not having disclosed full credit in Returns. Further, I find that as per Circular No.962/05/2012 dated 28.03.2012, the credit so claimed and reversed should be accepted by the Department. Further, I find that in case of TPL Developers cited supra, this Tribunal has held that there was no requirement of reversal in terms of Rule 6 up to 01.04.2016 when the Rules got amended. Further, I find that the amended Rules has not been invoked in the SCN and as per the formula prescribed under Rule 6(3A) of the CCR inserted vide Notification No.13/2016 with effect from 01.04.2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
