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2023 (5) TMI 565 - AT - Service TaxRecovery of CENVAT Credit alongwith interest and penalty - denial of CENVAT credit availed on ‘input services’ used for construction of buildings, from where renting of immovable property service is provided by the appellant for the reason that the same would result in creation of immovable property which is neither goods nor services - period in dispute from 2010-11 to 2013-14 - HELD THAT:- This precise issue was considered by a Division Bench of the Tribunal in Bharti Reality Ltd. [2022 (5) TMI 569 - CESTAT NEW DELHI] for the earlier period and it was held that the appellant would be entitled to avail CENVAT credit. Learned counsel for the appellant has, however, pointed out a relevant fact which has not been taken note of either in the show cause notice or in the impugned order passed by the Commissioner. This concerns the amendment made on 01.04.2011 in rule 2(l) of the 2004 Rules, which rule defines ‘input service’ - Learned counsel for the appellant pointed out that for commercial or industrial consideration, erection commissioning or installation and works contract service, the appellant availed CENVAT credit of service tax paid on works contract service prior to 01.04.2011 as the services were used for construction of buildings specifically given on rent, but the appellant, in view of the amendment made in rule 2(l) of the 2004 rules on 01.04.2022, did not avail CENVAT credit as these are services covered under the inclusive clause. The Commissioner has placed reliance upon a Larger Bench decision of the Tribunal in VANDANA GLOBAL LTD. VERSUS CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)], which decision has been set aside by the Chhattisgarh High Court and the decision of the Larger Bench of the Tribunal. The order dated 20.06.2017 passed by the Commissioner deserves to be set aside and is set aside and the appeal is allowed.
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