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2015 (12) TMI 1111 - AT - Service TaxDenial of CENVAT Credit - Input services used for Commercial Industrial Construction Service (CICS) - Renting of Immoveable Property Service (RIPS) - whether appellant is not eligible for credit as input services have resulted in an immovable property which is neither excisable nor any service tax is payable on the same - penalty under Rule 15(3) of the Cenvat Credit Rules read with Section 78 of the Finance Act, 1994 - Held that:- In 2011 the appellant declared their intention of availing Cenvat Credit on input services for discharging the service tax liability on the output service namely Renting of Immovable Property Service. There is no hiding the fact that these services were received over a period of 5 years from 2007 to 2011. And it was only when the construction was ready for renting out they took centralized registration in 2011. In the centralized registration the input service as well as the services to be provided were declared. We find that as held by the Hon'ble High Court of Karnataka in the case of mPortal India Wireless Solutions Pvt. Ltd., there is no provision in the Cenvat Credit Rules which imposes a restriction on availment of credit on input services procured before registration is taken. On the apprehension raised of Revenue as to how the verification could have been done in respect of services procured during the previous five years, we find that the appellant had submitted all documents including invoices before issue of show cause notice which enabled the department to make such verification. We may further go on to say that in the show cause notice no doubt has been expressed regarding the actual receipt of the services. As regards the verification of actual use of the input services, we find that the Annexure "A" to the show cause notice gives details of Cenvat credit availed on inputs and capital goods for the period 1.6.2007 to 31.3.2011 implying that department has conceded that the Cenvat credit was availed for the construction of mall and Renting of Immovable Property Service. Almost the entire credit has been availed on input services which have been used for providing the output service that is Renting of Immoveable Property Service for which there was no restriction under the clause (l) of the definition of ‘input service'. The inclusive part of the definition of input service allowed services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service etc. The words "setting up" were deleted only from 1.4.2011. Therefore the appellant are eligible for the credit in terms of the definition of input service. - credit is held to be admissible and recovery of the same is set aside - Decided in favour of assessee.
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