TaxTMI 
TaxTMI 
2020 (4) TMI 42
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.... name of 'DLF Emporio Mall' in Delhi using various inputs, input services and capital goods and thereafter rented out space in the aforesaid constructed Mall for commercial purposes, which activity would be covered under "renting of immovable property" service as defined under section 65 (90a) of the Finance Act, 1994. The appellant paid service tax on this RIP service. The appellant also availed CENVAT Credit on inputs, input services and capital goods used in the construction of the Mall and utilized the same for payment of service tax on RIP services provided by it. 3. However, a show cause notice dated 16 October, 2012 was issued to the appellant mentioning that it appeared that CENVAT Credit was not available on the inputs, input services and capital goods used in the construction of the Mall since service tax was not leviable on it. 4. The appellant filed a reply to the aforesaid show cause notice and denied the allegations made therein. 5. The Commissioner did not accept the contentions raised by the appellant in reply to the show cause notice and concluded that the appellant was not entitled to avail CENVAT Credit on inputs, input services and capital goods used in the c....
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....mmovable Property Services' in violation of Rule 3 of the CENVAT Credit Rules, 2004. The said CENVAT Credit wrongly utilized for discharging service tax liability on the 'Renting of Immovable Property Services' is required to be disallowed to them in terms of Rule 14 of the CENVAT Credit, 2004 read with section 73 of the Finance Act, 1994 & equal amount required to be recovered from them under Section 73 of the Act ibid. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 10.5 Thus, service tax liability of Rs. 1,32,711/- is recoverable on the taxable value of Rs. 11,24,199/- on which Service Tax has not been paid by the noticee. The noticee has already agreed with the contention of the department as pointed out in the SCN itself and has also deposited an amount of Rs. 1,00,215/- (Rupees One Lakh Two Hundred and Fifteen only) only (ST Rs. 97,296 + Ed. Cess Rs. 1,946 + SHE Rs. 973) and Rs. 63,201/- (Rupees Sixty Three Thousand Two Hundred and One only) towards interest upon above-mentioned amount of Rs. 1,00,215/- totalling to Rs. 1,63,416/- (Rupees One Lakh Sixty Three Thousand Four Hundred Sixteen only) vide Challan No.0088 dated 23.07.2012. However, the noticee has not deposited the balance am....
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....ad 2012 (28) S.T.R. 166 (Tri.-Ahmd.). 6. Ruchi Malls Pvt. Ltd. vs. Commissioner of Central Excise, Delhi-II 2018-TIOL-1991-CESTAT-DEL. 7. Oberoi Mall Limited vs. Commissioner of Service Tax, Mumbai-II 2017 (47) S.T.R. 292 (Tri.-Mum.). 8. Vamona Developers Private Limited vs. Commissioner of Customs, Central Excise & Service Tax, Pune-III 2016 (42) S.T.R. 277 (Tri.- Mum.) 9. Ascendas IT Park (Chennai) Limited vs. Commissioner of Service Tax, Chennai 2018-VIL-55-CESTAT-CHE-ST. 8. Learned Counsel also submitted that the amendment made in the definition of "input" and "input services" with effect from 1 April, 2011 would not be applicable in the present case because though the disputed period may be from 1 April, 2011 to 31 March, 2012, but the services were received by the appellant prior to 1 April, 2011 as a result of which, the appellant would be entitled to avail CENVAT Credit. In support of this contention, learned Counsel has placed reliance upon a Circular dated 29 April, 2011 issued by the Central Board of Excise and Customs (CBEC), wherein it has been clarified that the CENVAT Credit on input services will be available if the service had been provided before 1 April,....
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.... of electricity or steam used in or in relation to manufacture of final products or for any other purpose, within the factory of production; (ii) all goods, except light diesel oil, high speed diesel oil, motor spirit, commonly known as petrol and motor vehicles, used for providing any output service; Explanation 1.- The light diesel oil, high speed diesel oil or motor spirit, commonly known as petrol, shall not be treated as an input for any purpose whatsoever. Explanation 2.- Input include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer; but shall not include cement, angles, channels, Centrally Twisted Deform bar (CTD) or Thermo Mechanically Treated bar (TMT) and other items used for construction of factory shed, building or laying of foundation or making of structures for support of capital goods; (l) "input service" means any service,- (i) used by a provider of taxable service for providing an output service; or (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal, and includes services ....
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....Highway Property Private Limited Vs. CST [reported in (2012) 28 STR 166 (Tri.-Ahmd.)] and held that without construction of the building, the renting of immovable property services cannot be provided and that therefore, construction service is an eligible service for credit for providing output service of renting of immovable property. 11. In our considered view, the conclusion of the Tribunal is well founded, as construction service is an eligible service for credit for providing output service of renting of immovable property and without construction of the building, the renting of immovable property cannot be provided. We are also of the opinion that there is no error in the decision taken by the Tribunal." 18. The aforesaid decision of the Madras High Court makes reference to the decision of the Tribunal in Navaratna S.G. Highway. The said decision in Navaratna S.G. Highway, after placing reliance upon a decision of the Andhra Pradesh High Court in Sai Sahmita Storages, observed as follows:- "3.2 The definition of 'inputs' is limited to the definition of 'input services' as can be seen from the definition given above. Credit of duty paid on inputs is available when the inp....
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....diate stage, if it was ultimately used in relation to provision of output service or manufacturing of final products." 20. In view of the aforesaid decisions of the High Courts, there is no manner of doubt that CENVAT Credit availed by the appellant on inputs, inputs services and capital goods service used for construction of the Mall, which was ultimately let out could not have been denied to the appellant. The findings to the contrary recorded by the Commissioner cannot be sustained and are, accordingly, set aside. 21. The only issue that now remains to be decided is whether the amendment made with effect from 1 April, 2011 in the definition of "input service" will be applicable to the facts of the present case since the period of dispute in the second show cause notice is from 1 April, 2011 to 31 March, 2012. The second show cause notice dated 16 April, 2013 makes no mention of the amendment made in the definition of 'input service', much less mentioning that the 'input services' have been received by the appellant after 1 April, 2011. In reply to the show cause notice, the appellant stated that in view of the clarification dated 29 April, 2011 issued by CBEC, 'input services'....