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TMI Blog2018 (1) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... n nature, therefore, the cenvat credit sought to be denied as these services are not availed by the appellant for construction of any goods or service provided by them. As these premises become immovable property, therefore, they do not qualify as goods/capital goods. The matters were adjudicated. Demand of service tax was confirmed by denying cenvat credit to the appellant along with interest and the penalty was also imposed. 3. The Ld. Counsel for the appellant submits that the appellant has availed service in question for providing output service and as per Rule 2 (K) of the Cenvat Credit Rules, 2004, if any input used for providing output service, the assessee is entitled to avail cenvat credit. Further, the services which were used for providing taxable output service are entitled to avail cenvat credit as per Rule 2 (l) of the Cenvat Credit Rules, 2004. Admittedly, all these services have been availed by the appellant for providing output service, therefore, the appellant is entitled to avail cenvat credit on these services. The reason for denial of cenvat credit by the revenue is that as these premises becomes immovable property and looses character of goods, therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant prior to 01.04.2011 but the same has been utilised for payment of service tax after 01.04.2011. In cenvat credit Rules, 2004, there is no bar of utilisation of cenvat credit availed on any service or inputs received by the assessee prior to 01.04.2011 but the cenvat credit is not admissible after 01.04.2011. Moreover, it is not the case of the Revenue. In fact, the appellant has availed cenvat credit all these service/inputs prior 01.04.2011 but the same has been utilised after 01.04.2011, therefore, the availment of cenvat credit cannot be disputed. Further, the only issue is decided by me is that whether the appellant is entitled to avail cenvat credit on the input/input service in question for used for construction of immovable property or not. The said issue has been examined by this Tribunal in the case of Lemon Treee Hotel (Supra) wherein the facts of this case are reproduced as under: "2. 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 Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 bar availment of CENVAT credit all input services. In order to appreciate correct position of law, the definition of input services under Rule 2(l) of the CENVAT Credit Rules, 2004 as was during the relevant period of these cases is reproduced: "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 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 upt9o the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 2 from 2004 up to March, 2006. The Cenvat Credit Rules, 2004 were amended in exercise of the powers conferred by Section 37 of the Central Excise Act, 1944 with effect from 7-7-2009, the date on which it was notified by the Central Government from the date of the notification. According to learned Counsel for the appellant, this amended definition 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.) wherein in Paragraph 7, it has been clearly held that a plain reading of the definition of Rule 2(k) would dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he argument though attractive cannot be accepted. The jetty is constructed by the appellant by purchasing iron, cement, grid, etc., which are used in construction of jetty. The contractor has constructed jetty. There are two methods, one is that the appellant would have given entire contract to the contractor for making jetty by giving material on his end and then make the payment, the other method was that the appellant would have provided material to the contractor and labour contract would have been given. The appellant claims that he has provided cement, steel, etc., for which he was entitled for input credit and, therefore, in our opinion, the appellant was entitled for input credit and it cannot be treated that since construction of jetty was exempted, the appellant would not be entitled for input credit. The view taken contrary by the Tribunal deserves to be set aside. 8. It can be seen from the above reproduced paragraphs of the judgment of the Honble High Court of Gujarat the issue avaliment of CENVAT credit on the input services which are used for brining into existence of immovable property are also eligible for availment of CENVAT credit. 9. In view of the foregoing, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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