2019 (4) TMI 1007

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.... their various customers on lease and licence basis. Some spaces in the mall have also been given to advertisement companies for putting up their hoardings etc. for advertisement. Besides this, the appellant had also entered into the agreement with the licencees for maintenance of common area (CAM Services). The CAM services involves - (i) maintenance of (a) common area in the malls (b) 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 and the period of dispute in the appeal filed by M/s Nanded Treasure Bazar Pvt. Ltd. (hereinafter referred to as M/s NTBPL) is for the period October, 2009 to March 2010. Similarly in case of Ujjain Treasure Bazar Pvt. Ltd. ( (UTBPL) Private Limited, the period involved is October, 2010 to March, 2011. In these cases, the appellants have paid the service tax on the amount received by them from renting of mall space after their operation. under Section 65(105)(zzzz) read with Section 65(90a) of the Finance Act, 1994 and wer....

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....ted at Indore/Ujjain/Nanded under the names as stated above. The construction of these shopping malls got completed in the month of December, 2005, March 3/2010 and April/2011. For the construction of shopping mall, the appellant engaged various contractors who provided construction services to the appellants. The raw materials, such as steel, cement, channels etc. required by the contractors for construction of these mall were provided by the appellants themselves. The contractors charged service tax from the appellant on the consideration received by them for construction services. The service tax charged by the contractors was duly paid by the appellant to the contractor and the said fact is not under dispute. Further, the appellant received service such as consultancy, house keeping and security services, repair and maintenance etc for the construction of mall. 4.1 After construction of the mall, the appellants also entered into authorisation agreement as per licence agreement and charged certain sum for that on monthly basis. In addition to above, the appellants have collected the amount for maintenance of common area (CAM). The appellant discharged service tax on the amoun....

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.... CE & CC, Bhopal (CESTAT-Delhi)- Appeal No. ST/57043/13; (ix) M/s Z Square Shopping Mall Pvt. Ltd. Vs. Commissioner of Central Excise & Service Tax, Kanpur (CESTAT-Allahabad) - 2018-TIOL-2040. In all these cases it has been held that the appellants were entitled for Cenvat credit on inputs, capital goods and input services availed during the construction of Mall for providing output services viz. renting of immovable property. Learned Advocate submitted that the extended period of limitation is not invocable in these cases as the facts were disclosed before the department and the department was fully aware of the issue. In case of EDWL, learned Advocate, has submitted list of events which substantiated the fact that the department was aware of the activity of the department regarding availment of the Cenvat credit and returns were also being filed with the Service Tax Department as well as to the Income Tax Department and other Government bodies. Also the facts were disclosed by way of footnote in ST-3 returns filed by the appellants. The learned Advocate on behalf of the appellant further submits that regular audits of the appellants were being conducted by the departm....

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....d that the noticee have not provided any construction service as output service and hence there is no nexus between the input, input services and Cenvat credit on capital goods vis-a-vis the provisions of output service. The reliance was placed on the judgement of Maruti Suzuki Vs. CCE - 2009 (240) ELT 641 (SC) wherein it is held that the principle of nexus between the input and input services to output services is sine-qua-non is most for cenvatability of input and input services which is not nexus is not directly provided as the services have been provided by the contractor of the appellant and not the appellant themselves. It was also submitted that the document evidencing the payment of Central Excise duty/service tax on inputs, input services and on capital goods were not produced before the adjudicating authority and therefore, the credit has been taken without the production of cenvatable invoice. These cenvatable invoices were available with the ontractor service indicated by the nexus only output service of this other service provider. 5. The learned AR also submitted that the definition of input got changed from 7.7.2009 with issuance of Notification No. 16/2009-CE(NT)....

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....ied to them by their job workers/contractors for which raw materials have been supplied by the appellant. The demand in question is prior to the amendment of the provisions of input services under the Credit Rules i.e. prior to 2011. The issue is no longer res integra in view of the decision of Hon'ble Andhra Pradesh High Court in the case of Sai Sahmita Storages (P) Ltd. referred (supra) which was subsequently followed by the various other decisions as enumerated in para 4.1. In all these cases, the issue was identical and it was held by various Tribunals/High Court that in such a situation, the appellant would be entitled for the benefit of Cenvat credit prior to amendment. In case of DB Malls, this Tribunal vide its Final Order No. 51699/2018 dated 20.4.2018 held as under: "6. Regarding the capital goods, the matter has come up before the Tribunal in the case of DLF Ltd. V/s CCE & ST, Delhi, Final Order No. 62037-62030/2018 dated 22/03/2018 where the issue pertaining to the capital goods for input service used for providing the output services namely renting of immovable property service, it was observed that the appellant is entitled for availing Cenvat Credit. The sai....

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....ching 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. It can be seen from the above reproduced sub-rule, that input services includes the services used in relation to setting up, modernization, renovation of premises of provider of output services. In the case in hand, the definition is reproduced as above categorically will apply and the clarification given by the Board in CBEC Circular dated 04/01/2008 is going beyond the definition as reproduced is herein above. We find that similar issue as to eligibility to avail the CENVAT credit on design and engineering of pipe line services rendered by the pipeline laying of contractors, was denied in the case of Reliance Gs Transportation Infrastructure Ltd. (supra), holding that these services were utilized for bringing into existence an immovable property. The Bench after considering the definition of input services, held that the provisions of Section 2 (1) of the Cenvat Credit Rules, 2004 very clearly indicate eligibility to avail Cenvat Credit of the service tax paid on these services" ....