2023 (8) TMI 1143

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....mmissioner on 21/03/2018 confirming denial of CENVAT credit along with interest and equal penalty against respondent M/s Avaya India Pvt. Ltd. was set aside. 2. Facts of the case, in brief, is that the Respondent was a tenant of property owners M/s MTDCCL and WARPL. Property owners were receiving lease rental of the premises rented out to the respondent and also the proportionate amount of the electricity consumption by the occupants against raising of two distinct invoices every month. The service tax paid against proportionate electricity consumption amount was charged under 'Business Auxiliary Service' but electricity being in the nature of sale being exempted from the purview of service tax, credit availed by the respondent in respec....

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....urt of Calcutta passed in the case of Srijan Realty (P) Ltd vs. Commissioner of Service Tax-II, Kolkata reported in 2019 (3) TMI CALCUTTA HIGH COURT. Credit taken in raising bills on the occupant towards the realization of electricity consumption charges are admissible for which the cross-objection is filed with a limited purpose of noting the ratio of this decision in the order. 5. In response to such submission of the Learned Authorised Representative, Learned Counsel for the respondent submitted that apart from a departure from the judicially settled principle that credit cannot be denied at the receiver's end, in view of several decisions of this Tribunal including those reported in Commissioner of Central Excise, Pune vs. Ajinkya En....

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....eding paragraph. This being the position of the law, we have got no hesitation to confirm the order passed by the Commissioner (Appeals). But we are unable to go with the submission of Learned Counsel for the respondent that raising bills on the occupant with service tax component against realization of electricity charges are valid under the Service Tax Laws for the reason that in the said judgment it was categorically held that electricity was defined as 'goods' and thus capable of being traded for which it cannot be covered under the category of service tax nor appellant had any licence to supply electricity under the Electricity Act, 2003, but while such an order was passed treating the activity as the appellant therein had converted hi....