TaxTMI 
TaxTMI 
2016 (2) TMI 417
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....scharging service tax liability under the category of "Renting of Immovable Property Services" for the period April 2007 to March 2009. Revenue authorities were of the view that the appellant could not avail CENVAT credit on such input services and the goods as has been clarified by CBEC by Circular No.96/7/2007-ST dated 23.08.2007 and further amended by Circular No. 98/1/2008 - ST holding that credit of service tax paid on input construction services is not eligible for availing CENVAT credit. Coming to such conclusion a show-cause notice dated 05.06.2009 was issued by invoking extended period for the demand of ineligible CENVAT credit along with interest and for imposition of penalties. Appellant contested the matter on merits as well as ....
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....ority on Circular No. 98/1/2008-ST dated 04.01.2008 is incorrect as the said Circular is contrary to the provisions of Cenvat Credit Rules, 2004. It is her further submission that the issue is well settled by the Tribunal in the case of Navaratna S.G. Highway - 2012 (28) STR 166 (T) and Sai Samhita Storages - 2010 (255) ELT 91 (T); latter judgement was upheld by the Hon'ble High Court of Andhra Pradesh as reported at 2011 (270) ELT 33 (AP). It is also her submission that the Hon'ble High Court of Gujarat in the case of Mundra Ports & Special Economic Zone Ltd. - 2015 (39) STR 726 (Guj) has reversed the judgement and order of this Tribunal and held that CENVAT credit of duty paid on cement and steel used in construction of new jettie....
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.... property comes into an existence, such immovable property will be in the nature of constructed building/warehouse. In the case in hand, appellant had constructed a commercial complex and rented out the premises to various entities. (b) Secondly, unless the commercial complex is constructed and completed in all respects, the same could not be rented out by the appellant is a common sense. In our considered view the reliance placed by the learned Counsel in the judgement of the Tribunal in the case of Navaratna S.G. Highway (supra) will be applicable as in that case, Revenue sought to deny the CENVAT credit of the service tax paid on various input services used for construction of a "mall", the Bench (wherein one of us shri M.....
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....ce or in service provided by cold storage. As per Section 65(105)(zza), read with Section 66 of the Finance Act, there shall be levied tax on storage and warehousing services at 12% of the value of taxable service. The service tax payable is determined in accordance with Section 67(4) read with the Service Tax Rules, 1994 made in exercise of the powers under Section 94 of the Finance Act. There is no dispute that every provider of taxable service is entitled to claim CENVAT credit in relation to input service. Rule 2(k) and (l) of the Rules are relevant and they read as under. 2. Definitions. - (k) "input" means - all goods, except light diesel oil, high speed diesel oil and motor spirit, commonly known as p....
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....advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security, inward transportation of inputs or capital goods and outward transportation upto the place of removal. 7. A plain reading of both the above definitions would show that, unless excluded, rail goods used in relation to manufacture of final product or for any other purpose used by a provider of taxable service for providing an output service are eligible for CENVAT . In Maruti Suzuki Ltd. v. Commissioner of Central Excise, Delhi-III, (....
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....g the position, the decision of the Hon'ble High Court of Andhra Pradesh would be applicable to the present case. In that case also, the Hon'ble High Court took the view that without use of cement and TMT bars for construction of warehouse assessee could not have provided"storage and warehousing service". In this case also, without utilizing the service, mall could not have been constructed and therefore the renting of immovable property would not have been possible. The issue involved is squarely covered by the decision of the Hon'ble High Court of Andhra Pradesh. Since the service tax demand itself is not sustainable, the question of imposition of penalty does not arise. The appeal is allowed with consequential relief to the appellants. ....