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2022 (5) TMI 1120 - AT - Service TaxCENVAT Credit - duty paying invoices - whether availment of CENVAT Credit by the appellant on the basis of a debit note availed by M/s IGSSTPL without receiving any service is admissible as per law? - HELD THAT:- As per the agreement, under sub-clause (xxii) of definition under clause (1), the obligation of the Development Manager shall include repayment of loan to Yes Bank together with all cost of services thereof; repayment of Development Manager loan together with all cost of services thereof and repayment of all third party capital together with all cost of services thereof. To appreciate the factual position of the impugned case, it is found appropriate to go through the relevant clauses of the agreement between the appellant and M/s IGSSTPL. On going through the various clauses of the agreement, it is found that the appellants have entered into an agreement with M/s IGSSTPL; as a consideration of the agreement, a sum of Rs.520 Crores, was to be paid to the Development Manager; all the development activities including planning, organizing, designing, construction, marketing of the project were to be done by the Development Manager and also Development Manager was required to repay the loan amount availed by the appellant from the Yes Bank - The learned Commissioner further goes on to find that the said financial service is not used by M/s Neelkamal Realtors Towers Pvt. Ltd for providing any output services and that M/s IGSSTPL are not in the business of providing financial service, but are in the construction service. The said financial services are consumed by the Development Manager i.e. M/s IGSSTPL and, therefore, the availment of CENVAT Credit of the same, by the appellant, is contrary to the provisions of CENVAT Credit Rules, 2004. He further finds that transaction in money is outside the ambit of service. The passing on to the burden by the Development Manager to the appellants as to be seen is only the transaction in money and not a financial service provided by M/s IGSSTPL. While deciding the inadmissibility of CENVAT Credit, one needs to be clear as to what is the service rendered; who is the service provider; who is the service recipient; what is the consideration; whether Service Tax has been paid on the same; what is the output service provided by the input credit receiver i.e. the appellants in this case and whether there exists a nexus between the input service on which credit is taken and the output service provided. It is not clear from the records of the case and rival submissions as to whether all the above criteria is fulfilled - In the instant case, the Development Manager who has undertaken the work of construction and development of free land as per the contract entered into with the appellants. As per the terms of the agreement, M/s IGSSTPL would also avail loan from M/s DHFL and transfer the same to the appellants. It is not possible to come to a categorical conclusion on the basis of the available documents/records, so as to examine the claims of rival parties herein. While holding that credit of Service Tax cannot be availed just because M/s IGSSTPL had raised a debit note on the appellants without rendering any particular service and without raising any invoice on the appellants indicating categorically the details of the service provider, service recipient, the service provided and the remuneration thereof - the ends of justice will be met only if all the relevant issues are considered afresh by the adjudicating authority taking into account all the facts involved in the case. The appeal is allowed by way of remand to the adjudicating authority by keeping all the issues open.
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