TaxTMI 
TaxTMI 
TaxTMI 
2021 (4) TMI 121
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....t of all subsidiaries and associated companies of the appellant's group. The service provider leased the premises situated at A-1 RIICO, Industrial Area, Chopanki, Bhiwadi to M/s. Balkrishna Industries Ltd. through its Vice President Mr. Narender Kumar to utilise the premises for business purpose only but by all the subsidiaries and associated companies of the appellant. Accordingly, vide Show Cause Notice No.1285 dated 02.06.2017, it was alleged that the services in question do not fall within the purview of definition of input services and, therefore, the Cenvat Credit of Service Tax taken on the basis of the aforesaid invoices was proposed to be denied as being not admissible. Accordingly, an amount of Rs. 17,02,715/- was proposed to be recovered from the appellants alongwith the interest and the proportionate penalties. The said proposal was confirmed initially vide the Order-in-Original No. 72/CE/2017-18 dated 28 March, 2018. The appeal thereof was dismissed vide the order under challenge dated 14.05.2019. Being aggrieved, the appellant is before this Tribunal. 2. I have heard Mr. Shaswat Arya, ld. Advocate for the appellant and Shri P.Juneja, ld. Authorised Representative fo....
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....ud and suppression. The order under challenge is mentioned to have been passed merely on the basis of presumption by wrongly invoking Rule 8 of Cenvat Credit Rules and wrongly alleging the suppression. The order is, therefore, prayed to be set aside. Appeal is prayed to be allowed. 4. While rebutting these arguments, learned D.R. has laid reliance upon clause 5 (b) of the lease agreement wherein it has been specifically mentioned that "lessee shall utilise the demised premises for business purpose only which would deem to mean and include use an occupation of the demised premises by its subsidiary companies or associated companies". It is impressed upon that in view of the said clause in the lease agreement there arises no reason with the appellant to deny the usage of rented/leased premises by appellant's own subsidiary and associated companies also. Learned D.R. has also laid emphasis upon the VAT Registration Certificate which has been issued in favour of four Balkrishna Industries Ltd. existing at four different areas, however, all being in vicinity of the impugned leased premises. It becomes clear that clause 5 (b) is incorporated in the lease with the sole intention for thos....
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.... the appellant itself. As far as clause 5 (b), as relied upon by the Department is concerned though it recites about the subsidiary or associated companies of the appellant but perusal of clause makes it abundantly clear that it is a deemed clause for deemed inclusion of use an occupation by the subsidiary companies or associated companies. It being a deemed provision cannot supersede the clause 3 of the lease agreement as is mentioned above unless and until there is a cogent evidence produced by the Department to show that the deemed intention had actually and ever been acted upon by the appellant. Apparently and admittedly, there is no such evidence produced by the Department. In absence thereof confirmation to the proposal that the leased premises have not been exclusively used by the appellant is the confirmation based merely on presumption. Such confirmation does not warrant any recovery of the Cenvat Credit as has been availed by the appellant against the Service Tax paid to M/s. GSPL in lieu of the aforesaid lease agreement. 6. Further, I hold that service in question i.e. renting of immovable property is very well covered in "means" as well as "includes" clause of the defi....
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....ortage of storage space at the premises of such manufacturer, by an order, permit such manufacturer to store the input in respect of which CENVAT credit has been taken, outside such factory, subject to such limitations and conditions as he may specify: Provided that where such input is not used in the manner specified in these Rules for any reason whatsoever, the manufacturer of the final products shall pay an amount equal to the credit availed in respect of such input." 9. The perusal of the Rule makes it abundantly clear that scope of this rule is for reversal of credit of Cenvatable inputs. It is also clear that the permission is required only in cae of the storage of excisable raw-material. It is not the fact for the present appeal. Appellant has submitted that the input stored in the premises was non-excisable. There is no denial by the Department nor there is allegation in the Show Cause Notice about the inputs to be excisable. I observe that, in fact, there is no relevant evidence nor any discussion in the order under challenge despite that the allegation is therein Show Cause Notice and was duly replied by the appellant in his appeal before Commissioner (Appeals). Howev....