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TMI Blog2013 (9) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... T) dated 24.7.2013 the appellant is aggrieved against the pre-deposit of 35% of Cenvat Credit of inputs denied by the respondent. 3. The appellant is a real estate company engaged in construction of shopping malls. A show cause notice was issued on 7.3.2011 for the period ranging from July, 2007 to August, 2010, alleging that the CENVAT credit amounting to Rs.4,08,08,286/- has been wrongly availed on input services and inputs and the CENVAT credit amounting to Rs.3,20,84,784/- has been wrongly utilized. The appellant had availed CENVAT credit on input services valued at Rs.2,28,01,762/- and CENVAT credit on inputs (Cement, Glass, Steel, Iron etc.) used for construction of buildings at Rs.1,80,06,524/-. 4. A reply was submitted to the show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opinion, that the differences between Judicial Member and Technical Member have narrowed down to some services, which are utilised by provider of work contract service in construction of malls. In Navaratana S.G. Highway Prop. Pvt Ltd vs. CST, Ahmedabad 2012 (28) STR 166 (Tri-Ahmd) the Tribunal had allowed CENVAT credit of service tax in respect of such input services. He held that the owner of the property, who engages architect for preparing design of the building; and takes services of design engineer for preparation of design and contractor, is required to execute the work as per design of architect, design engineer and consulting engineer. Under CENVAT Credit Rules, credit can be taken by service recipient on the basis of invoices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in Rule 2 (k) and the judgment in Maruti Suzuki Ltd v. Commissioner of Central Excise, Delhi-III (2009) 9 SCC 193, held as follows:- "9. There is no dispute in these cases that the assessee used cement and TMT bar for providing storage facility without which storage and warehousing services could not have been provided. Therefore the finding of the original authority as well as the appellate authority are clearly erroneous, which was correctly rectified by the CESTAT. In so far as the levy of penalty under Rule 15 (2) of the Rules is concerned, unless and until there is a finding that there was suppression of fact, and irregular claim of CENVAT credit, the question of levying penalty under Rule 15 (2) of the Rules does not arise. In that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the raw materials so as to avail the credit of concessional rate of service tax; that foregone credit cannot travel to the appellant by jumping the 'Works Contract Service provider'. We really fail to understand as to how and in which manner the appellants are claiming the Cenvat credit of duty paid on the raw materials, which are in fact inputs for 'Works Contract Service provider and on which he has already decided not to avail the credit as a condition of availment of lower payment of Service Tax. As such at this stage, we prima facie agree with the revenue that the input credit availed by the appellants is not in accordance with the law." 11. In so far as the judgment of Andhra Pradesh High Court is concerned, the Judicial Member, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract service provider. 13. We have carefully considered the judgment of Andhra Pradesh High Court and find that it has been distinguished by CESTAT on valid grounds. We are of the view that even if there was any doubt with regard to any benefit of CENVAT credit on the inputs for construction of building, which may have arisen out of the judgment of the Andhra Pradesh High Court, the fact that the appellant had engaged works contract service provider, who had availed the benefit of CENVAT credit by opting for payment of service tax at a lesser rate on the condition of non-availability of credit of duty paid on inputs used in construction of building, such benefit could not have been claimed by the appellant. 14. We are informed that b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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