Cenvat Credit when there was no restriction but Utilized after the restriction on availment of Credit

Delhi High Court Bench after condoning the delay admitted the SERTA No- 8 of 2019 filed by Commissioner of Central Tax G.S.T East, Delhi against the CESTAT Final Order No 51687/2018 dated 03.05.2018 as reported inM/S RUCHI MALLS PRIVATE LIMITED VERSUS CST, DELHI [2018 (5) TMI 562 - CESTAT NEW DELHI]

CESTAT Principal Bench, New Delhi in case ofM/S RUCHI MALLS PRIVATE LIMITED VERSUS CST, DELHI [2018 (5) TMI 562 - CESTAT NEW DELHI]-  The appellant availed Cenvat credit in respect of service tax paid on various input services used in the construction of such Mall.

Appellant Contention- Credit was availed by the appellant prior to the period March’ 2011 and the Mall was also completed on 05.03.2011. It was further agrued that credit on the disputed services was taken by the appellant under the un-amended definition of input service (effective up to 31.3.2011), such services should be considered as input service and the Cenvat credit should be available to the appellant.

Department Contention: Since the retail Mall was utilised for providing the output service of renting of immovable property service after 1.4.2011, the amended definition of input service (with effect from 1.4.2011) should be applicable to the case of the appellant and as per the embargo created in such definition, the appellant will not be entitled for the Cenvat benefit on the disputed services.

Order: The appellant contended that the Cenvat credit was availed prior to 01.04.2011. In such eventuality, taking of credit is in conformity with the Cenvat statute. Since taking of Cenvat credit is proper and justified, its utilisation after 01.04.2011 cannot be questioned or disputed by the Department, in view of the fact that taking of Cenvat credit decides its utilisation, according to the convenience of the assessee.