TaxTMI 
TaxTMI 
2015 (11) TMI 104
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....e mall has also been given to advertisement companies for putting up their hoardings etc. for advertisement. Besides this, the appellants had also entered into agreements with the licensees for maintenance of common area (CAM services). The CAM services involve (i) maintenance of (a) common area in the malls (2) parking facilities (c) escalators, (d) lifts (e) DG sets and (f) fire fighting equipments and (ii) management of the malls. The period of dispute in the appeal filed by M/s Entertainment World Developers (P) Ltd. (hereinafter referred to as EWDPL) is from April 2005 to March 2011, the period of dispute in the appeal filed by M/s Naman Mall Management Company Pvt. Ltd. (hereinafter referred to as NMCPL) is from October 2009 to March 2010. and the period of dispute in the appeal filed by M/s Nanded Treasure Bazar Pvt. Ltd. (hereinafter referred to as NTPBL) is from October 2009 to March 2010. In these cases, the appellants have paid service tax on the amount received by them from renting of the mall space since 01/06/07 under Section 65 (105) (zzzz) readwith Section 65 (90a) of the Finance Act, 1994 and were also paying service tax on the amount received for common area....
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....d through contractors and the space in those malls had been given by them on lease and licence basis to various persons for its use in connection with business or commerce, that beside this, the appellant had also entered into agreements with their lessees/licensees for maintenance of common area and general management of the shopping malls for which they were receiving a specified amount, that the appellants have paid service tax on the maintenance and management charges being received by them and also the rent/lease charges received for renting/leasing of the space in the malls, that the various inputs like steel, cement, glass, etc. various inputs services relating to construction and various capital goods like lifts etc. had been used in or in relation to construction of malls, which, in turn, were used for providing output services on which the service tax has been paid, that in view of this, the appellants would be eligible for Cenvat credit of central excise duty paid on various inputs and capital goods and service tax paid on various input services used in the construction of malls, that in this regard, he relies upon the judgment of Honble Andhra Pradesh High Court in the....
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....ble property cannot be denied, that bulk of the Cenvat credit demand is also time barred, as the appellants had disclosed in the ST-3 returns for April 2006 to September 2006 period, the fact that they have given the space in the malls on lease and licence basis to various persons and they have received reimbursement towards common area maintenance charges and also the details regarding payments made to various service providers, the details of input services in respect of which the Cenvat credit had been availed and the details of the goods imported by the appellant and those indigenously procured, that similar facts had been disclosed in the ST-3 return for the period from September 2006 to March 2007, that in view of the above submissions, the impugned orders are not sustainable, that the appellant have strong prima facie case in their favour and, hence, the requirement of pre-deposit of Cenvat credit demands, interest thereon and penalty may be waived for hearing of these appeals and recovery thereof may be stayed till the disposal of the appeals. 4. Shri Govind Dixit, the learned DR, opposed the stay applications and defending the impugned orders by reiterating the findings....
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..... vs. CCE, Noida reported in 2013 - TIOL - 1442 - CESTAT - DEL., in the background of identical facts, has directed the appellant to pre-deposit 35% of the Cenvat credit involved on the inputs and capital goods and this judgment of the Tribunal has been upheld by Hon'ble Allahabad High Court, vide judgment reported in 2013 (4) ECS (2) (Allahabad- HC), (in respect of appeal filed by M/s Galaxy Mercantile Ltd.) and also by Hon'ble Delhi High Court vide judgment reported in 2013 TIOL 784 - HC - DEL - 51 (in respect of appeal filed against the same judgment of the Tribunal by M/s DLF Ltd.), that Hon'ble Allahabad High Court in its judgment has distinguished the judgment of Hon'ble Andhra Pradesh High Court in the case of CCE, Visakhapatnam II vs. Sai Sahmita Storages (P) Ltd. (supra) on the ground that in that case, the warehouse was constructed by the assessee by engaging labour while in this case the malls was not constructed by the appellant themselves but were got constructed on contract basis through contractors, that the appellants have suppressed the relevant facts from the Department and, hence, longer limitation period under proviso to Section 11A (1) of Central Excise A....
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....he contractors who had constructed the Malls and provided the services of commercial or industrial construction service' could avail Cenvat credit in respect of various inputs and input services only if they had paid service tax on the gross amount charged by them from the appellants and if they had paid service tax after availing 67% abatement by availing exemption or they had discharged service tax liability by treating their service as work contract service under Section 65 (105) (zzzza) and had paid service tax at the compounded rate under works contract (Composition Scheme for payment of Service Tax) Rules, 2007, they would not be eligible for Cenvat credit in respect of any input at all and in such a situation, there would be no question of the appellants availing Cenvat credit in respect of inputs received by their contractors for which even the contractors were not entitled. Therefore, we are of prima facie view that notwithstanding the fact that the appellant have paid service tax on the amount of rent/lease charges received by them by renting/leasing of the space in the malls for commercial purposes, they would not be eligible for Cenvat credit of excise duty paid on var....