TaxTMI 
TaxTMI 
TaxTMI 
2026 (2) TMI 238
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....movable Property". The Department entertained a view that the appellant has availed and utilized inadmissible CENVAT credit on input, input services and capital goods in violation of CCR, 2004. On these allegations, Department issued the following SCNs for the period 01.06.2007 to 31.03.2011: S. No. SCN Date SCN No. Period 1. 13.10.08 DL/ST/AE/Gr I(2)/257/08/25112 01.06.07 to 31.03.08 2. 29.09.09 D-III/ST/R-II/SCN/ Cyber/117/2008/8090 DLF 01.04.08 to 31.03.09 3. 19.10.10 D-III/ST/R-II/SCN/ Cyber/117/2008/4698 DLF 01.04.09 to 31.03.10 4. 08.09.11 D-III/ST/R-II/SCN/ Cyber/117/2008/4346 DLF 01.04.10 to 31.03.11 3. The appellant filed reply to the SCNs and denied the allegations made therein. After following the due process, the learned Commissioner did not accept the contentions raised by the appellant in reply to the SCN and concluded that the appellant was not entitled to avail CENVAT credit on inputs, input services and capital goods in the construction of immovable propert....
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....t be disputed that the immovable property is the premises for providing 'Renting of Immovable Property Service' and therefore, the services used for setting up such premises expressly qualifies in the definition of 'input service'. He also submits that 'includes clause' in the definition does not require a one to one correlation between the input and Output service, for the purpose of availing CENVAT credit. He also submits that the 'activities relating to business' is followed by "such as accounting, auditing, financing, recruitment and quality control, coaching and training computer networking, credit rating, shar registry, and security". He also submits that the only common underlying thread between the said activities is that they are needed to run a business in a commercially expedient manner. 5.2. Learned Counsel further submits that the issue involved in the present case has been considered by various judgments of the Tribunal and the High Courts and more so, in the appellants and its sister concern's cases and CENVAT credit has been allowed in respect of input, input services which are used by raising the construction for providing output service of 'Renting of Immovable....
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....vt. Ltd. - 2023 (70) GSTL 237 (P&H), is misplaced. He further submits that in the case of M/s Bellsonica Auto Components, issue involved was of admissibility of credit of input and input service used for construction of a factory, which was used further for manufacturing of excisable goods by the manufacturer. Whereas, in the case of DLF Ltd., the issue was not identical but the inputs and input services were used for construction of immovable property for renting of the property by a service provider and not used for manufacturing of goods. He further submits that the fate of the appeal filed by the Department in DLF Ltd. case is not known and hence, the said judgment of P & H High Court even otherwise cannot be treated as final and hence not reliable at this stage. 6.2. Learned Special Counsel further submits that the matter is still sub-judice before the Hon'ble Apex Court as the Hon'ble Court has issued notices in all other identical cases viz. City View Bangalore Properties Private Limited (2023) 9 Centax 51 (SC), Golf Links Software Park Private Ltd 2023 (75) GSTL J5 (SC) etc. (AnnexureC). Learned Special Counsel has prayed that the case may be kept in abeyance till the ca....
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....ther 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 used in relation to setting up, modernization, renovat....
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....ich were received by the appellant for construction of building which itself is to be used in the provision of output service of Renting of Immovable Property and in the absence of aforesaid input services, the Renting of Immovable Property Service cannot be provided at all. Therefore, we hold that the appellant is eligible to take credit of the service tax paid on input services received by the appellant. We also find that in the case of Regency Park Property Management Services Pvt. Ltd. (supra) wherein in Para 20, the Tribunal, relying on various decisions of High Courts, held that there is no manner of doubt that CENVAT credit availed by the appellant on inputs, input 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. 7.3. Further, we find that in the case of M/s VITP Private Limited (supra), the Tribunal relying on the judgement of the Principal Bench in the case of M/s Regency Park Property Management Services Pvt. Ltd. (supra) held that we are inclined to allow the CENVAT....
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.... otherwise requires,- (a) to (k) ...... ...... ..... ..... (l) "input service" means any service,- (i) ... ... .... ..... (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 used in relation to setting up, modernization, 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, activities relating to business such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security, inward transportation of inputs or capital goods and outward transportation upto the place of removal." 3. "Cenvat credit. (1) A manufacturer or producer of final products or a provider of taxable service shall be allowed to take credit (hereafter referred to as the Cenvat credit) of- (i) to (viii) ... ... .... ..... (ix) the service tax leviable....
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.... or indirectly or in any event in relation to the manufacture of the respondents' final product. 8. The land was taken on lease to construct the factory. The factory was constructed to manufacture the final product. The land and the factory were required directly and in any event indirectly in or in relation to the manufacture of the final product and for the clearance thereof up to the place of removal. But for the factory the final product could not have been manufactured and the factory needed to be constructed on land. The land and the factory are used by the manufacturer in any event indirectly in or in relation to the manufacture of the final product, namely, metal-sheets. The respondents' case, therefore, falls within the first part of Rule 2(1) aptly referred to by Mr. Amrinder Singh as the "means part". 9. The respondents' case also falls within the second part of Rule 2(1) i.e. the "inclusive" part. The definition of the words "input service" also specifically includes the services used in relation to setting up of a factory. Mr. Amrinder Singh rightly contended that it was not the appellant's case that the services were not used for the setting up of th....
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....rvice relating to such a factory fell within the definition of 'input service'. The amendment of 2011 is not retrospective and is not applicable to the respondents' case." The dictum laid down in Bellsonica Auto Components India P. Ltd. (supra) would squarely apply in the facts of the present case as well. At this stage Mr. Amrinder Singh, Advocate for the respondent brings to our notice that an information had been sought from the appellant department under the Right to Information Act and by way of response it had been informed that the decision in Bellsonica Auto Components India P. Ltd. (supra) had been accepted by the department. Such factual premise is not disputed by Mr. Tajender K. Joshi, Advocate for the appellant. In view of the above, we do not find any patent infirmity in the findings returned by the Tribunal. The questions of law are answered against the appellant and in favour of the assessee/respondent. Appeal is dismissed 7.5. Learned Special Counsel has raised an argument that some of the decisions involving identical issue is pending before the Hon'ble Apex Court therefore, the present case may be kept in abeyance till the Ho....
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....e decision in the case of UOI Vs West Coast Paper Ltd. relied upon by the Revenue, awaiting the decision of the Hon'ble Apex Court. Further, the Hon'ble Delhi High Court, in the case of Principal Commissioner of Central Excise Delhi-I Vs Space Telelink Ltd. - 2017 (355) ELT 189 (Del.) in Para 7, 8 & 9, has observed as under: 7. The revenue has argued that the Supreme Court has entertained a Special Leave Petition against the judgment of the Gujarat and Madras High Courts and furthermore, granted a stay of proceedings and that in these circumstances, the law declared in those judgments are no longer applicable. This submission is fallacious because in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association (1992) 3 SCC 1, the Supreme Court had observed as follows : "While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of passing of the order which has been quashed. The stay of operation of an order does not, however, lead to s....