TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 392
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....tice dated 22.10.2012 for the period from October, 2010 to March 2011 and SOD for the period 13.04.2015 onwards. The Adjudication authority as per the impugned orders held that the Appellant is not eligible for the CENVAT credit on various inputs services and confirmed the demand of duty with interest and also imposed penalty. Aggrieved by said orders, present appeals are filed. 3. When the appeals came up for hearing, the Learned Counsel for the Appellant draw our attention to the show cause notice dated 24.08.2011 where it is alleged that Appellant is not eligible for the CENVAT credit on input service which were received during the period from December, 2006 to August, 2007 since it is prior to the registration on 08.08.2007 and thus availed ineligible CENVAT credit of Rs. 32,25,862/-. Further it is alleged that for the period from August, 2007 to March, 2009, the input services were for the construction of a hotel which did not have any direct nexus to the output services and for that reason, CENVAT credit of Rs. 3,49,73,602/- was denied. Further for the period from April, 2009 to September, 2010, it is alleged that the Appellant did not obtained service tax registration und....
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....ion, air condition restaurant services, since these services were taxable with effect from 01.05.2011. 5. The Learned Counsel also draw our attention to the definition of input services for the period prior to 01.05.2011 and for the period thereafter. As per the definition of the input services prior to 01.05.2011, it includes services used in relation to "setting up" of the activities whereas the word "setting up" was omitted as per the amended provisions. However other activities including modernization, renovation or repair of a factory premises provider outside service and an office relating to such factory or premises, advertisement of sales promotion, marketing, search storage up to the place of removal, requirement of inputs...etc are eligible for the input credit. The Appellant submits that the impugned orders passed by the Ld. Adjudicating Authority are beyond the scope/allegations in the SCNs/SOD inasmuch as the findings in the impugned order(s) are contrary to the allegations made in the SCNs/SOD. It is well settled that SCN is the foundation on which the revenue has to build up its case and if the allegations in the SCN are not specific but vague and lack details, th....
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....7 (48) STR 361 (All.). 8. As regarding denial of the inputs credit on setting up of premises of the provider output service, the issue is settled as per the decision of this Tribunal in the matter of M/s Golf Link Software Park Pvt Ltd vs CCE (2018-TIOL-2877-CESTAT Bang) affirmed by Hon'ble High Court of Karnataka (2023 (8) Centax 30 Kar). The Learned Counsel also relied on large number of decisions; 1) Oberon Edifices & Estates Pvt Ltd v. CCE, (2023) 10 Centax 346 (Tri-Bang.) 2) GV Properties Pvt Ltd v. CCT, FO No.21633/2024 dtd.20.12.2024. 3) CST v. DLF Ltd, 2023 (70) GSTL 237 (P&H). 4) CCE v. Bellsonica Auto Components India Pvt Ltd, 2015 (40) STR 41 (P&H). 5) CCE v. Sai Samhita Storages (P) Ltd, 2011 (23) STR 341 (AP). 6) Mundra Ports & Special Economic Zone Ltd v. CCE, 2015 (39) STR 7226 (Guj.). 7) CCE v. Dymos India Automotive Pvt Ltd, 2019 (365) ELT 26 (Mad.). 8) Bharti Realty Ltd v. CST, 2022 (65) GSTL 234 (Tri- Del.). 9) RMZ Infotech Pvt Ltd v. CCT, 2022 (64) GSTL 599 (Tri- Bang.). 10) Lemon Tree Hotel v. CCE, 2018 (10) GSTL 241 (Tri- Hyd.). 11) Vamona Developers Pvt. Ltd.....
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....t is being setup. It is only when the unit has been put to such a shape that it can start functioning as a business or manufacturing organization that it can be said to have been set up. In view of the above legal proposition, the Appellant submits that they, having used various input services in relation to setting up of their hospitality business which is admittedly used for providing various taxable output services, are eligible for the benefit of Cenvat Credit. Thus, the demand as per the impugned order(s) are untenable. 11. As regarding invoking the extended period of limitation and penalty, the Learned Counsel submits that the proceedings were initiated based on the audit of records and based on the ST-3 return filed by the Appellant and hence there cannot be any suppression of facts and the Appellant relied on the decision in the matter of CCE Vs. M/s Sanmar Specialty Chemicals Ltd (2016 (43) STR 347 Kar. and CCE Vs. M/s SZY Pharma Pvt Ltd (2017 (358) E.L.T 101). The Learned Counsel also relied on the decisions of M/s Continental Foundation Joint Venture Vs. CCE, 2007 (216) ELT 177 (SC) and M/s Jayaprakash Industries Ltd. Vs. CCE, 2002 (146) ELT 481 (SC). As regarding con....
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....s. Commr. of Cus., C.Ex. & ST, 2016 (42) STR 277 (T) = 2015-TIOL- 2705-CESTAT-MUM, the Tribunal has ruled that credit on input services used for construction of Mall to provide renting of immovable property services (output service) was available to discharge Service Tax liability on renting of immovable property. The Tribunal also held that even if such input services are procured before obtaining Service Tax registration, such credit could not be denied as there is no restriction for availment of such credit. This decision squarely applies in this case and the impugned order is untenable in law. Further, the appellant relied on the decision in Mysore Holding Pvt. Ltd. Vs. CST, 2017 (52) STR 0070 (T) = 2016-TIOL-2993- CESTAT-BANG in which it has been held that CENVAT Credit on input services relating to construction activity, is allowable to real estate developers holding the Service Tax registration. The Tribunal followed the precedent in Infosys Ltd. Vs. Commissioner 2015 (37) STR 862 (T) = 2014- TIOL-409-CESTAT-BANG in which it was held that the construction services used as input services for setting up a global training centre for rendering taxable services for commercial tra....
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....ble property cannot be provided. We are also of the opinion that there is no error in the decision taken by the Tribunal. 16. Further Learned Counsel draw our attention to the decision of Larger Bench in the matter of Reliance Industries Vs. CCE, Mumbai (Supra), where it is held that; "71. The two issues that have been referred to the Larger Bench of the Tribunal are, therefore, answered in following manner; (i) The answer to the first issue would be: (a) The Bombay High Court in Coca Cola India and Ultratech Cement has settled the interpretation of 'input service' in Rule 2(1) of the 2004 Rules, as it stood prior to its amendment on 1-4-2011; (b) The definition of input service can be effectively divided into the following five categories, in so far as a manufacturer is concerned: (i) Any service used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products; (ii) Any service used by the manufacturer whether directly or indirectly, in or in relation to clearance of final products from the place of removal; (iii) Services used in relation to setting up, modern....