2017 (7) TMI 799 - AT - Service Tax

Tribunal grants CENVAT credit for essential services used in hotel construction

M/s Lemon Tree Hotel (Cyber Hills Developers Pvt. Ltd.), M/s Fleur Hotels Pvt. Ltd. Versus CC, & CE, Hyderabad-IV

The Tribunal allowed the appeals, overturning the denial of CENVAT credit on Works Contract Services, Project Management Services, and Architectural ... CENVAT credit - input services - denial on the ground that the invoices being not in the name of the appellant and CENVAT credit was availed prior to registration - whether the service tax paid on Works Contract Services, Project Management and Architectural Professional Services can be considered as input services for the appellant when these services are used for construction of hotel? - Held that: - It is undisputed that the services are utilized for brining to existence building which is used by the appellants for hospitability business and is used for rendering output services like mandap keeper and health club and fitness centre and dry cleaning service and internet cafe services. It is an unimaginable that a hotel can render these services without a building in its place - the input services are availed by the appellant in respect of Works Contract Services, Project Management Services and Architectural Professional Services used for construction of a building, which subsequently is put into use for rendering taxable output services. Input services includes the services used in relation to settingup, modernization, renovation of premises of provider of output services. Avaliment of CENVAT credit on the input services which are used for brining into existence of immovable property are also eligible for availment of CENVAT credit - appeal allowed - decided in favor of appellant. Issues Involved:- Availment of CENVAT credit on Works Contract Services, Project Management Services, and Architectural Professional Services used for construction of a hotel.- Interpretation of the definition of input services under Rule 2(l) of the CENVAT Credit Rules, 2004.- Applicability of CBEC Circular No. 98/1/2008 ST.- Comparison with relevant case laws and tribunal decisions.- Analysis of the decision of the Hon'ble High Court of Gujarat.Issue 1: Availment of CENVAT Credit on Input Services:The appeals challenged the denial of CENVAT credit by the Revenue Authorities on Works Contract Services, Project Management Services, and Architectural Professional Services utilized for constructing a hotel. The appellants argued that since the building was essential for providing taxable services, the credit should be allowed. The Tribunal noted that the services were indeed used to bring the building into existence for offering output services like health club and fitness center. The definition of input services under Rule 2(l) of the CENVAT Credit Rules, 2004 was crucial. The Tribunal held that the Board Circular denying credit was erroneous as the definition allowed for credit on services related to setting up premises used for output services.Issue 2: Interpretation of Input Services Definition:The Tribunal analyzed the definition of input services under Rule 2(l) of the CENVAT Credit Rules, 2004. It highlighted that services used for setting up or modernizing premises for output services were eligible for credit. The Tribunal emphasized that the construction of the building was directly linked to providing taxable services, making it a valid input service as per the defined criteria. This interpretation was crucial in determining the eligibility of the appellants to claim CENVAT credit on the input services utilized for constructing the hotel.Issue 3: Applicability of CBEC Circular No. 98/1/2008 ST:The Departmental Representative relied on CBEC Circular No. 98/1/2008 ST to argue against allowing CENVAT credit on services used for immovable property. However, the Tribunal found that the Circular's stance was inconsistent with the defined scope of input services under the CENVAT Credit Rules. The Circular's limitation on credit for services related to immovable property construction was deemed inapplicable in this context based on the specific definition provided under Rule 2(l).Issue 4: Comparison with Case Laws and Tribunal Decisions:The appellants cited relevant case laws and tribunal decisions, including the case of Reliance Gas Transportation Infrastructure Ltd. and the decision of the Hon'ble High Court of Gujarat in Mundra Ports and Special Economic Zone Ltd. These references supported the appellants' argument that CENVAT credit could be availed on input services used for creating immovable property. The Tribunal found these precedents consistent with its interpretation of the CENVAT Credit Rules and ruled in favor of allowing the credit in the present case.Issue 5: Analysis of High Court Decision:The Tribunal analyzed the decision of the Hon'ble High Court of Gujarat, which upheld the eligibility of CENVAT credit on input services used for constructing immovable property. The judgment highlighted the applicability of the CENVAT Credit Rules and emphasized that services related to setting up premises for output services qualified as input services. The Tribunal aligned its decision with the principles established by the High Court, reinforcing the validity of allowing CENVAT credit in such scenarios.In conclusion, the Tribunal set aside the impugned order, allowing the appeals and granting consequential reliefs based on the eligibility of the appellants to avail CENVAT credit on the input services utilized for constructing the hotel. The judgment clarified the interpretation of input services under the CENVAT Credit Rules and emphasized the relevance of case laws and tribunal decisions in determining the applicability of CENVAT credit in similar situations.