TaxTMI 
TaxTMI 
2023 (5) TMI 565
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....ch is neither 'goods' nor 'services'. 3. The appellant, during the relevant period, constructed buildings using various input services and thereafter, rented out the space therein. According to the appellant this would fall under 'renting of immovable property' service and it has, accordingly, paid service tax on this service. 4. During the period in dispute from 2010-11 to 2013-14, the appellant availed CENVAT credit on such input services used in the construction of the buildings which were rented afterwards. 5. Earlier, a show cause notice dated 17.04.2012 was issued to the appellant for the period from 01.04.2008 to 31.03.2011 for denial and recovery of CENVAT credit availed on various input, inputs services and capital good for the reason that such input, input services and capital goods result in creation of immovable property which would neither be goods nor services. It is in continuation of the said show cause notice dated 17.04.2012 that the present show cause notice dated 16.10.2015 was issued to the appellant under section 73(1)A of the Finance Act, 1994 [the Finance Act]. The show cause notice specifically mentions that the allegations would be same as contain....
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....for provision of renting services and thus, the appellant is eligible to avail CENVAT credit. 12. This precise issue was considered by a Division Bench of the Tribunal in Bharti Reality Ltd. for the earlier period and it was held that the appellant would be entitled to avail CENVAT credit and relevant portions of the order are reproduced below:- " 9. The short question to be answered is whether inputs, capital goods and input services which are used for construction of buildings and structures, which are then used for providing services are eligible for CENVAT credit or not. 10. The case of the Revenue is that neither these inputs and capital goods nor the input services are directly used for providing services but they are used for construction of immovable property which is neither a good nor a service. Therefore, the inputs, capital goods and input services which go into creation of such an immovable property does not qualify as input, capital goods service or input service under the CENVAT Credit Rules, 2004. 11. The case of the appellant is that the immovable property is a structure which comes in the process of providing taxable service. It is no....
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.... 15. All the questions were answered in favour of the assessee and against the Revenue. In the case of Vodafone India Limited vs. Commissioner of Central Excise, Mumbai II30 the Bombay High Court held that no CENVAT credit is admissible on the inputs used in construction of the towers. Jurisdictional High Court of this Bench, viz, Delhi High Court has, in the case of Vodafone, on the other hand, held that CENVAT credit is admissible on the inputs and input services used for construction of the towers. 16. The submission of the Revenue is that the appeals filed before the Supreme Court in these matters are pending. We, however, find that there is no stay on the decision of jurisdictional High Court in Vodafone Limited. The decision of the Delhi High Court is binding on this Bench. 17. We also find substance in the submission of the appellants on merits as it is undisputed that the appellants are engaged in providing renting of immovable property service and all the inputs, capital goods and input services which are in dispute were used for construction of buildings which were then rented out and service tax was paid on the renting of immovable property service. ....
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....ether 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 used in relation to modernisation, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation upto the place of removal; but excludes - (A) service portion in the execution of a works contract and construction services including service listed under clause (b) of section 66E of the Finance Act (hereinafter referred as specified services) in so far as they are used for- (a) construction or execution of works contract of a building or a civil structure or a part thereof; or (b) laying of foundation or making of structures for support of capital goods, ex....