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2021 (5) TMI 833 - AT - Service TaxCENVAT Credit - input services - services of commercial and industrial construction availed by them for construction of their premises - HELD THAT:- The issue regarding admissibility of Cenvat credit on Commercial and Industrial Construction Service used for construction of building which in turn are used for renting purpose has been settled by Hon’ble High Court of Madras in THE COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI VERSUS M/S. DYMOS INDIA AUTOMOTIVE PRIVATE LIMITED [2018 (9) TMI 1135 - MADRAS HIGH COURT] where it was held that as construction service is an eligible service for credit for providing output service of renting of immovable property and without construction of the building, the renting of immovable property cannot be provided, the credit remains allowed. It is noticed that the renting of Immovable Property Service came into existence with effect from 01.06.2007 and therefore credit of Commercial and Industrial Construction Service for the period prior to levy of service tax on Renting of Immovable Property Service cannot be allowed. The credit of services availed after 01.06.2007 is however admissible. Cenvat credit for prior period - other output services namely Banking and Financial Services, Goods Transport Agency Service, Management and Maintenance and Repair Service and Sponsorship Service - HELD THAT:- The services specified above have no relation to the building. If at all these services are only be provided from very small part of the building the rest of the building has been rented by the appellant which at the material time was not taxable service. Thus, the admissibility of credit needs to be examined from that aspect. Moreover it is also not clear if the said services Banking and Financial Services, Goods Transport Agency Service, Management and Maintenance and Repair Service and Sponsorship Service were provided from same premises or from elsewhere. Admissibility of the credit is the question of law and therefore the appellant’s can raised at the stage of first appellate level also. Since this aspect has not been examined by the lower authorities the impugned order is set aside and the matter is remanded to the original adjudicating authority for fresh consideration after taking note of above observations. Appeal allowed by way of remand.
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