TMI Blog2016 (2) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... in favor of assessee. - Application No. ST/S/699/12 In Appeal No. ST/199/12 - - - Dated:- 6-1-2016 - MR. M.V. RAVINDRAN, MEMBER (JUDICIAL) AND MR. C.J. MATHEW, MEMBER (TECHNICAL) For the Petitioner : Ms. Aparna H, Advocate For the Respondent : Shri B. Kumar Iyer, Supdt. (AR) ORDER PER: M.V. RAVINDRAN This appeal is directed against Order-in-Original No. 30/ST-II/WLH/2012 dated 06.03.2012. 2. The relevant facts that arise for consideration are appellant herein had availed CENVAT credit of the service tax paid on the input services, goods and used the same for discharging service tax liability under the category of Renting of Immovable Property Services for the period April 2007 to March 2009. Revenue authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, Drainage Work, Air Conditioning Work, Supply of Diesel Generator Set, Erection Installation of Elevators and Civil Work by Contractors had discharged the service tax under Works Contract Service and various other services. It is her submission that Commercial Complex so constructed was intended for renting out during the period in question hence the appellant had under bonafide belief availed CENVAT credit and utilized the same for discharge of service tax liability under the category of Renting of Immovable Properties . It is her submission that the reliance by the adjudicating authority on Circular No. 98/1/2008-ST dated 04.01.2008 is incorrect as the said Circular is contrary to the provisions of Cenvat Credit Rules, 2004. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategories related to construction of commercial complex or otherwise. The adjudicating authority has relied upon the Boards Circular No. 98/1/2008-ST to confirm the demands raised by the show-cause notice. 6.1 We are not in agreement with the findings recorded by the adjudicating authority for more than one reason. (a) Firstly, it is not disputed that appellant had discharged appropriate service tax liability under the category of Renting of Immovable Property . In our considered view the service tax liability on renting of immovable property will not arise unless the immovable property comes into an existence, such immovable property will be in the nature of constructed building/warehouse. In the case in hand, appellant had constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it on cement and TMT bars would be admissible. The Honble High Court observed as follows : 6. The only allegation against the assessee is that they claimed CENVAT credit irregularly with reference to cement and TMT bars used in the construction of warehouses through which the storage and warehousing services are provided by the assessee. Section 65(102) of the Finance Act defines storage and warehousing as to include storage and warehousing services for goods including liquids and gases but does not include any service provided for storage of agricultural produce or in service provided by cold storage. As per Section 65(105)(zza), read with Section 66 of the Finance Act, there shall be levied tax on storage and warehousing services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the factory of the manufacturer; (l) input service means any service, - used by a provider of taxable service for providing an output service; or used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal, and includes services used in relation to setting up, modernization, 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, financing, recruitment and quality control, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een 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 definition includes input services used by a provider of taxable service for providing an output service. Therefore the definition of input and input service are pari materia as far as the service providers are concerned. That being the position, the decision of the Hon ble High Court of Andhra Pradesh would be applicable to the present case. In that case also, the Hon ble High Court took the view that without use of cement and TMT bars for construction of warehouse ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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