TMI Blog2013 (12) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... ay, it is not disputed that rent paid for such ground floor was also taxed under the category of renting-out of immovable property by the owner. It is seen from the records that the appellant has paid such service tax to the owner and hence in my view is eligible to avail the CENVT credit of the service tax paid on the rent for the ground floor. When the appellant pays service tax to service provider and has got documentary evidence which is as per the provisions of the Finance Act, 1994 and the Rules made thereunder, such CENVAT credit cannot be denied. Secondly, though the appellant has entered into an agreement with Mr. Mohammed Oomer Sait for renting of the entire premises, subsequently on written request of the owner, due to presumably his own tax problem, had directed the appellant to issue two different cheques. The issuance of two different rent cheques, one in the name of Mr. Mohammed Oomer Sait and Mrs. Tahseen Oomer Sait would not mean that the appellant is not paying any rent to the owner of the premises. In my view, point raised by the Revenue in denying the refund is hyper technical. This view is unsustainable and liable to be set aside, more so when it is undisput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmission that the right of assessee to appeal to the Tribunal against the revision order passed under Section 84 still remains as has been held by the Tribunal in the case of T.A. Pai Management Institute vs. Commissioner of Central Excise, Mangalore: 2013 (29) S.T.R. 577. It is his submission that the appellant had availed CENVAT credit on service tax paid on maintenance charges, rent paid for the ground floor and service tax paid on rent paid to the owner and on his direction paid to his wife. It is his submission that CENVAT credit availed is not being disputed by the department in the entire proceedings. The only question which has been raised by the revisionary authority is regarding the eligibility to claim the refund on an amount which according to the revisionary authority is having no nexus with the output services exported. On merits, it is his submission that the appellants have rented ground floor, first floor and second floor of the building along with car parking, etc., for providing output services which are exported. It is his submission that the appellant was required to pay the maintenance charges to the society/apartment on which service tax was charged. It is hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een rejected by the revisionary authority. 5. Learned departmental representative on the other hand would draw my attention to the very same facts. It is her submission that the revisionary authority in this case has come to the conclusion that maintenance charges which has been paid by the appellant for the car parking is not eligible for availing CENVAT credit. It is her submission that on this point there was no nexus with the output services rendered by him, for such services received. It is her submission that as regards the service tax paid on the rent for the ground floor of the premises which was not registered during the relevant time and was not included in the centralized registration certificate is not eligible to avail CENVT Credit. As regards the credit of service tax paid on the rent paid to Mrs. Tahseen Oomer Sait, it is her submission that Mrs. Tahseen Oomer Sait had never entered into any agreement with the appellant. She would submit that Mr. Mohammed Oomer Sait is the sole and absolute owner of the premises and was collecting the rent from the appellant earlier. She would also draw my attention to the agreement entered into by the appellant with Mr. Mohammed O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance charges, I find that there is no dispute as to the fact that the car parking area and other maintenance charges levied by the apartment is in respect of the space rented by the appellant for rendering his output services. If there is service tax liability which has been discharged by the service tax provider and collected from the appellant, and if the premises are used by the appellant for rendering output services, I do not see any reason for denying such CENVAT credit to the appellant and consequent refund. 6.3 As regards the non-registration of ground floor in the centralized registration certificate, I find that the appellant being registered with the authorities under STP, the appellants were admittedly rendering their output services from the premises which have been rented to them i.e., ground floor, first floor and second floor. Non-inclusion of the ground floor in the centralized registration certificate may be at the most curable defect which was subsequently cured. Be that as it may, it is not disputed that rent paid for such ground floor was also taxed under the category of renting-out of immovable property by the owner. It is seen from the records that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in appeal before the Commissioner (Appeals) related only to validity of Order-in-Original levying service tax and not to enhancement thereof and thus, Section 84(4) of the Finance Act, 1994 could not apply. 5. We are unable to accept the submission. Section 84 of the Finance Act, 1994 to the extent relevant is as under:- (1) The Commissioner of Central Excise may call for records of a proceeding under this chapter which has been taken by the subordinate to him and may make such inquiry or cause such inquiry to be made and subject to the provisions of this chapter, pass such order thereon as he thinks fit. (2) xx xx xx (3) xx xx xx (4) No order under this section shall be passed by the Commissioner of Central Excise in respect of any issue if an Appeal against such issue is pending before the Commissioner of Central Excise (Appeal). (5) No such order under this section shall be passed after the expiry of two years from the date of which the order sought to be revised has been passed. A perusal of above provision shows that if any issue is pending in appeal, the revisional jurisdiction could not be exercised. No doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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