TaxTMI 
TaxTMI 
2018 (6) TMI 255
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.... Shri. Sachin Chitnis, Ld. Counsel for the appellant submits that absolutely identical issue in the appellant's own case has been decided by this Tribunal reported as Nirlon Ltd vs 2016-TIOL-1571-CESTAT-MUM. He further submits that on the similar issue, this Tribunal has consistently held in various judgments in favour of the assessee. One of such judgments in the case of Sai Samhita Storages P. Ltd. vs. CC&CE, Visakhapatnam-II - 2010 (255) ELT 91 (Tri.-Bang.) has been upheld by the Hon'ble Andhra Pradesh High Court as reported in 2011 (270) ELT 33 (AP). He placed reliance on the following judgments (i) Navaratna SG Highway - 2012 (28) STR 166 (T); (ii) Maharashtra Cricket Association - 2015-TIOL-2418- CESTAT-MUM; (iii) Vamona Devel....
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....construction of commercial building which has been rented out by the appellant to various parties on which they have already discharged service tax. This issue is no longer res integra as in case of Sai Samhita Storages P. Ltd. decided by Hon'ble Andhra Pradesh High Court, the credit on construction service of a building where the output service is renting of immovable property service, has been held admissible. In the identical issue of earlier period in the appellant's own case, Tribunal has decided in their favour reported as Nirlon Ltd (supra) wherein the coordinate bench passed following order:- "5. We have considered the submissions made at length by both sides and perused the records. 6. Undisputed facts are appellant herein has....
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....ed 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.V. Ravindran was Presiding Officer) after considering the definition of 'input service' held as under:- 3.1 The Revenue has relied upon the definition of 'input services' as given in Rule 2(l)(i) of CENVAT Credit Rules, 2004 which reads as under: "input services means any service used....
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....ction 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 (1) 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 petrol used in or in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not and includes lubricating oils, greases, cutting oils, coolants, accessories of the final products cleared along with the final product, goods used as pain....
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....tal goods and outward transportation upto the place of removal. 7. A plain reading of both the above definitions would show that, unless excluded, all 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 credit, in Maruti Suzuki Ltd. v. Commissioner of Central Excise, Delhi-III, (2009) 9 SCC 193 = 2009 (240) E.L.T. 641 (S.C.) = 2009- TIOL-94-SC-CX the Supreme Court laid down as follows. 9. Coming to the statutory definition of the word "input" in Rule 2(g) in the CENVAT Credit Rules, 2002, it may be noted that the said definition of the word "input" can be divided into three parts, namely: (i) specific part (i....
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....39;. 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. (c) It is also seen that the similar issue came up before the Tribunal in the case of Sai Samhita Storages (supra) wherein CENVAT credit of cement and TMT bars was denied by the Revenue on construction of cold storage. The Tribunal held in favour of the assessee. Aggrieved by such an order, Reve....