TMI Blog2016 (11) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... iding storage facility without which storage and warehousing services could not have been provided - the appellant has correctly taken the cenvat credit to the tune of ₹ 20,84,900/- on construction services. Accordingly the same is allowed. Imposition of penalty - Held that: - During the period April' 2009 to March' 2010 there was a stay on the levy of service tax under the category of renting of immovable properties services which is ultimately paid by the appellant alongwith interest. Further, the issue is pending before the Hon'ble Apex Court. In that circumstance, I hold that no penalty is imposable on the appellant - appeal allowed - decided in favor of appellant. - Service Tax Appeal No. ST/657/2012-SM - FINAL ORDER NO: 6143 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cenvat credit was sought to be denied. The demand of service tax was also confirmed along with interest and equivalent amount of penalty was also imposed. The appellant is in appeal against the said order. 3. The Ld. Counsel for the appellant submits that although the appellant has availed cenvat credit on input services namely, construction, installation of machinery services for start of the factory of manufacturing of excisable goods, as the project was not viable to the appellant therefore, let out the factory premises and on the rent is paying the service tax under the category of Renting of Immovable Property Services since June' 2007 therefore, in the light of the decision of this Tribunal in the case of Maharashtra Cricket ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy 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. Whether the service is input service or otherwise, it can be ascertained only on the basis of definition of service' as provider under Rule 2(1) of Cenvat Credit Rules, 2004, which is reproduced below: Input Services- As per Rule 2(1) of Cenvat Credit Rules, 2004, (prior to 1-4-2011) 'input service' means any service, i. Used by a provider of taxable service for providing an output service, or ii. Used by the manufacturer, whether directly or indirectly, in or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e i.e. the appellant. The output service is renting of stadium and other miscellaneous services. In view of this undisputed position of law, the services, used by the appellant for setting up the stadium, are input services and squarely covered by definition of 'Input service' as reproduced above. The 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 service, for the simple reason that if the premises are used for providing the ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court of Andhra Pradesh would be applicable to the present case. In that decision of the Hon'ble High Court took the view that without use of cement and TM T bars for construction of warehouse assessee could not have provided 'storage and warehousing service'. In this case also, without utilizing the service, mall could not have been constructed and therefore the renting of immovable property would not have been possible. The issue involved in squarely covered by the decision of the Hon'ble High Court of Andhra Pradesh. Since the service tax demand itself is not sustainable, the question of imposition of penalty does not arise. The appeal is allowed consequential relief to the appellants. Relying on the aforesaid judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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