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2016 (8) TMI 13 - CESTAT NEW DELHI

2016 (8) TMI 13 - CESTAT NEW DELHI - TMI - Cenvat Credit - eligible input services - input services were used for creating immovable property - Held that:- benefit of canvat credit allowed - credit taken on debit notes are also allowed as valid duty paying documents. - Credit taken twice is required to be reversed. - Decided partly in favor of assessee. - Service Tax Appeal No. 56237 of 2013 and Misc. Application No. 50536 of 2015 - Final Order No. 52477/2016 - Dated:- 16-6-2016 - S.K. Mohanty, .....

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is not admissible to the appellant for the relevant period. (b) I order for recovery of CENVAT credit amounting to ₹ 5,56,16,995/- under Rule 14 of Cenvat Credit Rules, 2004 read with Section 73 of the Finance Act, 1994. (c) I order for recovery of interest on the amount confirmed at (b) above under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 75 of the Finance Act, 1994; (d) I impose a penalty of ₹ 5,56,16,995/- under the provisions of Rule 15(1) of Cenvat Credit Rules .....

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nceded that the same has been decided against the assessee vide CESTAT Larger Bench Interim Order No. IO/ST/41/2016 dated 3.3.2016 in the case of Idea Mobile Communications Ltd. vs. C.S.T. He however pleaded that even in the order leading to difference of opinion referred to Larger Bench which passed the above orders. Both the Members agreed that extended period was not invocable in this case. (c) As regards the input service credit amounting to ₹ 1,13,90,730/-, Id. Advocate referred to th .....

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(e) As regards the component of cenvat credit, of ₹ 2,07,393/- denied on the ground of having been taken twice, he admitted that as per chart on Page 458 - 459 of the appeal papers, the said credit appears to have been taken twice though he said the two entries related to different documents. 3. Ld. A.R. for Revenue on the other hand contended that the impugned input services were used for creating immovable property and therefore, credit on such input services cannot be allowed as they we .....

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ed period is not invocable in this case. Consequently, the cenvat credit on capital goods/inputs pertaining to normal period only is recoverable. 5. As regards the input service credit amounting to ₹ 1,13,90,730/-we find that the definitions of 'input' and 'input service' given in Rule 2(k) and (l) of Cenvat Credit Rules, 2004 are significantly different from each other. Therefore, the ratio of Bombay High Court judgment in the case of Bharati Airtel vs. C.C.E. - 2014 - TIO .....

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n use of the input service for construction of building or civil structure used for providing output service. Reliance on the case of Bharti Airtel Ltd. (supra) is misplaced. First , the Hon 'ble High Court clearly held that their conclusion is based on the facts and circumstances which fell for their consideration in those appeals. Secondly, because in that case the input services/inputs were used in construction of towers which were held to be immovable property and hence not excisable. An .....

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ices used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service etc. The words 'setting up' were deleted only from 1.4.2011. Therefore, the appellant are eligible for the credit in terms of the definition of input service. 8. In view of the above, the credit is held to be admissible and recovery of the same is set aside. Accordingly, interest and penalty are also set aside. Thus following the above precedents, we hold that th .....

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