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2015 (11) TMI 910 - CESTAT MUMBAI

2015 (11) TMI 910 - CESTAT MUMBAI - 2016 (41) S.T.R. 833 (Tri. - Mumbai) - Availment of CENVAT Credit - whether the services such as Architect Services, Consulting Engineers Services, Management Consultancy Services etc. used for construction of sports stadium are admissible input services for taking Cenvat Credit as against the output service of the appellant i.e. renting of the said stadium and other services on which services, service tax was discharged - Held that:- Input service specificall .....

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s etc. used for setting up the premises i.e. stadium of provider of output service i.e. the appellant.

Board Circular appears to have travelled absolutely contrary to the clear and plain language of the definition of the input service. It is very pertinent that legislators knowing fully that there is no tax or excise duty on the constructing premises of the output service provider, included services used for setting up of the premises of provider of output services, for the simple rea .....

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5 - P S Pruthi, Member (T) And Ramesh Nair, Member (J) For the Appellant : Ms Aparna Hirandagi, Adv For the Respondent : Shri A K Goswami, AC, (AR) ORDER Per Ramesh Nair This appeal is directed against Order-in-Original No. 25/P-III/ST/COMMR/2011-12 dtd. 30/11/2011 passed by the Commissioner of Central Excise, Pune-III, wherein the Ld. Commissioner confirmed the demand for ₹ 2,32,27,682/- under Sec. 73 of the Finance Act and the same amount already paid by the appellant was appropriated ag .....

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constructed a cricket stadium at vill. Gahunje, Tal. Mulshi, Distt. Pune and for the said purpose, they had received architect's services and design services from certain consultants, who did not have any office or fixed established in India; that, as such M/s. Maharashtra Cricket Association had paid service tax on the services received by them from persons located outside India in terms of Sec. 66A of Finance Act; after paying the service tax on reverse charge basis M/s. M.C.A. had taken .....

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s input service credit to person providing 'Renting of Immovable Property Services' and therefore the amount of service tax paid on architect's services and design services received by the appellant which they had used for constructing the said stadium, was inadmissible to appellant and thus liable to be recovered. 3. In view of this contention, the show cause notice proposed the demand of Cenvat Credit amount of ₹ 2,32,27,682/- in terms of Rule 14 of Cenvat Credit Rules, 2004 .....

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ent appeal. 4. Ms. Aparna Hirandagi, Ld. Counsel for the appellant submits that the show cause notice as well as confirmation of the demand was made only on the basis of Board Circular No. 98/01/2008-ST dated 04.01.2008. She submits that the said Board Circular is completely contrary to the definition of 'Input Services' provided under Rule 2(l) of Cenvat Credit Rules, 2004. She further submits that period involved in the present case is 2008-09. As per the definition of input service, p .....

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ce tax under the head of 'Renting of Immovable Property Services'. 5. In view of this undisputed fact, the services of Architect, Consulting Engineering, Management Consultant etc. are the 'input services' used for setting up the stadium and the output services of the appellant is 'Renting the Immovable Property' on which service tax was discharged. The CBEC Circular No. 98/01/2008-ST dated 04.01.2008, which is the sole basis for denied of Cenvat Credit is absolutely cont .....

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Ahmd.) 4. Sai Samhita Storages Pvt. Ltd. V/s C.C. & C.Ex., Visakhapattnam-II - 2010 (255) E.L.T. 91 (Tri. - Bang.) 5. C.C.E., Visakhapattnam-II V/s Sai Samhita Storages Pvt. Ltd. - 2011 (270) E.L.T. 33 (A.P.) 6. Shri A.K. Goswami, Ld. Commissioner (AR) appearing on behalf of the Revenue reiterates the impugned order. He submits that from the Board Circular No. 98/01/2008-ST dated 04.01.2008, it is very clear that commercial or industrial construction service or works contract service is an i .....

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ex Court that Board Circular is binding on the departmental officer. 7. We have carefully considered the submissions made by both the sides. 8. The issue involved is whether the services such as Architect Services, Consulting Engineers Services, Management Consultancy Services etc. used for construction of sports stadium are admissible input services for taking Cenvat Credit as against the output service of the appellant i.e. renting of the said stadium and other services on which services, serv .....

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indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal]1n, and includes services used in relation to setting up, modernisation, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, fina .....

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ses of provider of output service or an office relating to such premises. On the analysis of the definition, it becomes clear that the 'input service' is not limited to the services for providing output service, but it also includes the service for setting up the premises of provider of output service. In the present case the input services are Architect Services, Consulting Engineers Services, Management Consultancy Services etc. used for setting up the premises i.e. stadium of provider .....

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nowing fully that there is no tax or excise duty on the constructing premises of the output service provider, included services used for setting up of the premises of provider of output services, for the simple reason that if the premises are used for providing the output service, the credit of input services used for setting up the premises of service provider must be allowed. 9. In view of this clear and unambiguous definition of input service, it is apparent that the Circular is contrary to t .....

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n used for renting and other services. The operative para is reproduced below:- "3.2 The definition of 'inputs' is limited to the definition of 'input services' as can be seen from the definition given above. Credit of duty paid on inputs is available when the inputs are used for providing an 'output service'. Therefore, there is a need to say that the inputs have been used for providing an 'output service'. In the case of 'input service', the definit .....

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