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2022 (4) TMI 830 - CESTAT NEW DELHICENVAT Credit - input service - amount paid to the broker / property consultant for purchasing the immovable property to be used for providing output service of renting of immovable property - Extended period of limitation - HELD THAT:- From the definition of input service, it is clear that any service used by provider of taxable service for providing an output service is admissible input service. In addition, the input service specifically include among other services as are being utilised, the services used in relation to setting up of factory or premises of the provider of output services. Though vide an amendment in rule 2(l), the words ‘setting up’ were omitted with effect from 1.4.2011 but the period here is 2009 to 2010 i.e. prior the said amendment. Thus the services used for setting up of premises from where the output service has to be provided are to be treated as input service and would be eligible for CENVAT credit. This Tribunal Mumbai Bench in the case of M/S VAMONA DEVELOPERS PVT LTD VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX, PUNE-III [2015 (12) TMI 1111 - CESTAT MUMBAI] has held that when the output service was the service of renting of a mall any service for getting that mall constructed is an eligible input service. Tribunal in the case of M/S BELLSONICA AUTO COMPONENT INDIA PVT LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI-III, GURGAON [2014 (3) TMI 876 - CESTAT NEW DELHI] held that the services of installation is the services clearly covered under the services of setting up of the premises. It was held that setting up of factory has a nexus with the manufacturer of final product and accordingly the services are eligible inputs service. Even service of pipeline laying is held to be eligible input service for providing output service of transportation of gas as it was held by this Tribunal in case of RELIANCE GAS TRANSPORTATION INFRASTRUCTURE LTD. VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI II [2016 (8) TMI 91 - CESTAT MUMBAI]. The amount in question is the amount given to the person who rendered the services of getting purchased the immovable property through which the output service of renting of immovable property could not have been provided. The brokerage/ consultancy services received for setting up of said immovable property is accordingly held to be an eligible inputs service. Extended period of limitation - HELD THAT:- Admittedly the demand has been raised for the period 2009 to 2010 but it has been raised vide Show Cause Notice in the year 2014. The demand is absolutely for a period more than one year/ 18 months. The Show Cause Notice has been issued invoking proviso to section 11B of Central Excise Act, 1944. But it is clear that the proviso can be invoked only in case where there is any allegations of fraud or suppression of facts that too with an intent to evade payment of duty is found against the appellant. In the present case as has already mentioned above, admittedly the appellant is regularly discharging the Service Tax liability ST 3 return are also being regularly filed, even the broker i.e. M/s Arora & Associates was duly registered with the Service Tax department ( as already mentioned above) there remains no question of evasion of duty - the facts otherwise had come to the notice of the department at the time of audit of appellant’s record in the year 2010. The show cause notice was still issued after four years later. The above said show cause notice proviso for invoking the extended period has wrongly been confirmed by the Adjudicating Authority. Hence it is clear that the Department has wrongly invoked the extended period. Appeal allowed - decided in favor of appellant.
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