TaxTMI 
TaxTMI 
2019 (10) TMI 1097
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....e impugned order is also relied on the decision of the Hon'ble High Court of Bombay in the case of Hutchison Max Telecom P. Ltd 2008 (224) E.L.T 191 (Tri. Bom.). The decision of Larger Bench in the case of Vandana Global Ltd (Supra), has been set aside by the Hon'ble High Court of Chhattisgarh. Moreover, he argued that the identical issue has been decided by Tribunal in case CCE vs Bellsonica Auto Components India P. Ltd-2015 (40) (P & H), 3. The Ld. AR relied on the impugned order. 4. We have considered rival submissions, we find that the impugned order essentially relied on the decision of Larger Bench in case of Vandana Global Ltd (Supra). It is noticed that the said decision of Larger Bench has been set aside by Hon'ble High Court of Chhattisgarh as reported in 2018 (16) G.S.T.L 462 as observed as para 2 to 10 as follows: 2. By the order dated 17-6-2008 the Principal Bench of the Tribunal referred the following issues for consideration to the Larger Bench : "(a) Whether the term "capital goods" can include plant, structures, embedded to earth? (b) Whether the goods like angles, joists, beam, channels, bars, flats which go into fabrication of such structures can be ....
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....eration before different High Courts either cited as precedent or as relied upon by the Tribunal in different other matters. The Gujarat High Court in Mundra Ports & Special Economic Zone Ltd. - 2015 (39) S.T.R. 726 (Guj.) referred to the contents of the amendment, to the extent it is relevant for the purpose of this case and held as follows : "We do not find that amendment made in the Cenvat Credit Rules, 2004 which come into force on 7-7-2009 was clarificatory amendment as there is nothing to suggest in the Amending Act that amendment made in Explanation 2 was clarificatory in nature. Wherever the Legislature wants to clarify the provision, it clearly mentions intention in the notification itself and seeks to clarify existing provision. Even, if the new provision is added then it will be new amendment and cannot be treated to be clarification on particular thing or goods and/or input and as such, the amendment could operate only prospectively." 6. That view has been quoted with approval by the Madras High Court in M/s. Thiruarooran Sugars v. Customs, Excise and Service Tax Appellate Tribunal (CMA 3814/2014 and connections) decided on 10-7-2017 [2017 (355) E.L.T. 373 (Mad.)]....
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....ly' and 'in or in relation to' by adopting a common sense approach. Immovable property is neither service nor goods and, therefore, input credit cannot be taken. Although civil construction work is a taxable service under the Finance Act, 1994, it is basically civil in nature relatable to the immovable property not chargeable to central excise duty. Immovable property is neither 'service' nor 'goods'. Input credit is not available to them. Commercial or industrial construction service or works contract service is an input service for immovable property which is neither subjected to central excise duty nor to Service tax. In this regard, the Commissioner referred to a C.B. E&C. Circular, dated 4-1-2008. The Commissioner also held that the service tax paid on lease rentals is not covered under the "input service" as the same is not remotely connected to the manufacturing activity and that the nexus thereof with the manufacture of the final product is far-fetched as the same is not used directly or indirectly in or in relation to the final product i.e. metal-sheet. 7. We are entirely in agreement with Mr. Amrinder Singh's submission on behalf of the respondents, that the Cenvat cre....
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.... the year 2011 to Rule 2(l), construction services were excluded from the definition of "input service." The amended section in so far as it is relevant reads as under :- "(l) "input service" means any service, - (ii) (A) specified in sub-clauses (p), (zn), (zzl), (zzm), (zzq), (zzzh) and (zzzza) of clause (105) of section 65 of the Finance Act (hereinafter referred as specified services), in so far as they are used for - (a) construction of a building or a civil structure or a part thereof; or" Clause (105)(zzq) of Section 65 of the Finance Act reads as under :- "(105) "taxable service" means any service provided or to be provided, - (zzq) to any person, by any other person, in relation to commercial or industrial construction. Explanation.- For the purposes of this sub-clause, the construction of a new building which is intended for sale, wholly or partly, by a builder or any person authorised by the builder before, during or after construction (except in cases for which no sum is received from or on behalf of the prospective buyer by the builder or the person authorised by the builder before grant of completion certificate by the authority competent to issue su....