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TMI Blog2017 (7) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... ommr) ST dated 27.01.2012 & 10/2013-Adjn (Commr.) ST dated 19.03.2013. 3. The relevant facts that arise for consideration in these appeals are the appellants herein had availed CENVAT credit during the period April, 2008 to September, 2009 of the service tax paid by the service providers under Works Contract Services, Project Management Services and Architectural Professional Services which are utilized for construction of a building to be a hotel. Revenue Authorities are of the view that the service tax credit cannot be availed on these services by the appellants as said property is immovable property. Coming to such a conclusion, two different show cause notices were issued for the demand of the CENVAT credit availed by the appellants al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the appellants is rendering taxable service, availment of CENVAT credit on the input services cannot be questioned. He would further submits the period involved in this case is prior to 01.04.2011 the definition of input services as per Rule 2(l) of the CENVAT Credit Rules, 2004, contemplated those services which are used for setting up and modernization of premises used by output service provider. He would submit that there cannot be any dispute that the building constructed is for setting up of a hotel which is used for providing taxable output services. He would submit that similar issue came up before the Tribunal in the case of Reliance Gas Transportation Infrastructure Ltd., CST, Mumbai-II [2016 (45) STR 286 (Tri.- Mumbai)] and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility business and is used for rendering output services like mandap keeper and health club and fitness centre and dry cleaning service and internet cafe services. It is an unimaginable that a hotel can render these services without a building in its place. In our considered view, the input services are availed by the appellant in respect of Works Contract Services, Project Management Services and Architectural Professional Services used for construction of a building, which subsequently is put into use for rendering taxable output services. We find that the adjudicating authority was in error to rely upon the Board Circular No. 98/1/2008-ST dated 04.01.2008 in as much, the definition of input services during the relevant period does not ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008 is going beyond the definition as reproduced is herein above. We find that similar issue as to eligibility to avail the CENVAT credit on design and engineering of pipe line, services rendered by the pipeline laying of contractors, was denied in the case of Reliance Gas Transportation Infrastructure Ltd., (supra), holding that these services were utilized for brining into existence an immovable property. The Bench after considering the definition of input services, held that the provisions of Section 2(l) of the CENVAT Credit Rules, 2004 very clearly indicate eligibility to avail CENVAT credit of the service tax paid on these services. 8. Views of the Tribunal have been fortified by decision of the Hon'ble High Court of Gujarat in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nition would apply only to the factory or manufacturer and would not apply to the service provider. According to him, either before the amendment made in the year 2009 or thereafter, the appellant was neither factory nor manufacturer and he has only constructed jetty by use of cement and steel for which he was entitled for input credit as jetty was constructed by the contractor, but the jetty is situated within the port area and the appellant is a service provider. According to the appellant, his case is squarely covered by the judgment of the Division Bench of the Andhra Pradesh High Court in Commissioner of Central Excise, Visakhapatnam-II v. Sai Sahmita Storages (P) Limited, 2011 (270) E.L.T. 33 (A.P.) - 2011 (23) S.T.R. 341 (A.P.) where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put and as such, the amendment could operate only prospectively. In our opinion, the view taken by the Tribunal is based on conjectures and surmises as the Larger Bench of the Tribunal used the expression that intention behind amendment was to clarify. The coverage under the input from where this intention has been gathered by the Tribunal has not been mentioned in the judgment. There is no material to support that there was any legislative intent to clarify any existing provision. For the same reason, as mentioned above, the decision of the Apex Court in Sangam Spinners Limited v. Union of India and Others, reported in (2011) 11 SCC 408 - 2011 (266) E.L.T. 145 (S.C.) would not be applicable to the facts of the instant case. 9. Mr. Ravani ..... X X X X Extracts X X X X X X X X Extracts X X X X
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