TMI Blog2014 (9) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore the definition of input and input service are pari-materia as far as the service providers are concerned. That being the position, the decision of the Hon’ble High Court of Andhra Pradesh in the case of CCE, VISAKHAPATNAM-II Versus SAI SAHMITA STORAGES (P) LTD.[2011 (2) TMI 400 HC)] would be applicable to the present case. In that case also, the Hon’ble High Court took the view that without use of cement and TMT bars for construction of warehouse assessee could not have provided ‘storage and warehousing service’. In this case also, without utilizing the service, mall could not have been constructed and therefore the renting of immovable property would not have been possible - Appeal No. : ST/251,493/2011 - ORDER No. A/1156 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e creation of immovable property is admissible as per the order passed by this Bench in the case of Navratna S.G. Highway Prop. Pvt. Limited vs. Commissioner of Service Tax, Ahmedabad - [2012 (28) STR 166 (Tri. Ahmd.)]. So far as credit on input services used in the construction of immovable property given on rent is concerned, he relied upon the following case laws:- (a) Agriculture Products Market Committee vs. CCE, Vadodara - [2013 (30 STR 558 (Tri. Ahmd.)] (b) CCE, Vishakhapatnam-II vs. Sai Sahmita Storages (P) Limited - [2011 (270) ELT 33 (A.P.)] 3. Shri Alok Srivastava (A.R.) appearing on behalf of the Revenue argued that inputs, capital goods and input services are used in relation to creation of immovab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy Service (vii) Technical Testing Analysis Agency (viii) Bank Charges (ix) Professional fees against Environmental Clearance Certificate (x) Event Management Service (xi) Rent-a-cab Operator Service (xii) Food Expenses (xiii) Chartered Accountants Service (xiv) Real Estate Agency Service (xv) Advertising Agency Service (xvi) General Insurance Service (xvii) Construction Service (xviii) Repair and Maintenance Service (xix) Business Auxiliary Service (xx) Courier Service (xxi) Erection and Commissioning Service used for elevators and CCTV. (xxii) Airtime Charges (xxiii) Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gricultural produce or in service provided by cold storage. As per Section 65(105)(zza), read with Section 66 of the Finance Act, there shall be levied tax on storage and warehousing services at 12% of the value of taxable service. The service tax payable is determined in accordance with Section 67(4) read with the Service Tax Rules, 1994 made in exercise of the powers under Section 94 of the Finance Act. There is no dispute that every provider of taxable service is entitled to claim CENVAT credit in relation to input service. Rule 2(k) and (l) of the Rules are relevant and they read as under. 2. Definitions. - (k) input means - all goods, except light diesel oil, high speed diesel oil and motor spirit, commonly known as petrol, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torage up to 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 up to the place of removal. 7. A plain reading of both the above definitions would show that, unless excluded, rail goods used in relation to manufacture of final product or for any other purpose used by a provider of taxable service for providing an output service are eligible for CENVAT credit. In Maruti Suzuki Ltd. v. Commissioner of Central Excise, Delhi-III, (2009) 9 SCC 193 = 2009 (240) E.L.T. 641 (S.C.) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h would be applicable to the present case. In that case also, the Hon ble High Court took the view that without use of cement and TMT bars for construction of warehouse assessee could not have provided storage and warehousing service . In this case also, without utilizing the service, mall could not have been constructed and therefore the renting of immovable property would not have been possible. The issue involved is squarely covered by the decision of the Hon ble High Court of Andhra Pradesh. Since the service tax demand itself is not sustainable, the question of imposition of penalty does not arise. The appeal is allowed with consequential relief to the appellants. 4. Further, in the case of Agriculture Products Market Committee vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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