TMI Blog2018 (1) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... ble and Explanation 2 did not provide that cement and steel would not be eligible for input credit. According to learned Counsel for the appellant, the appellant is not manufacturer and, therefore, the provisions of Explanation 2 of Rule 2(k) would be applicable only to the factory and manufacturer. The appellant is neither having any factory nor he is manufacturer. The appellant is a service provider of port. As all the inputs/inputs service has been used by the appellant for construction of a building which has been let out by the appellant and paying service tax thereon under the category of Renting of Immovable Service therefore, the appellant is entitled to avail cenvat credit - appeal allowed - decided in favor of appellant. - Appeal No.ST/60752/2017 - Final Order No.60018/2018 - Dated:- 3-1-2018 - Mr. Ashok Jindal, Member ( Judicial ) Shri. P.K. Mittal, Advocate- for the appellant Shri. G.S.Dhillion, AR- for the respondent ORDER Per Ashok Jindal The appellant is in appeal against the impugned order for denial of cenvat on various input/input services. 2. The brief facts of the case are that the appellant is builder and engaged in the activ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are similar to the said case and in the said case the Hon ble High Court held that they are entitled to avail cenvat credit. He also took support of the decision of this Tribunal in the case of Lemon Tree Hotel reported in 2017 (63) GST 364 , therefore, he prayed that the impugned order is to be set aside. 3. On the other hand, the ld. AR submits that as per the CBEC Circular No.98/01/2008-ST dated 04.01.98, the appellant is not entitled to avail cenvat credit. He further submits that the decision of the Hon ble High Court of Andhra Pradesh in the case of Sai Sahmita Storages (P) Ltd.(Supra) has been challenged before the Hon ble Apex Court and the same is pending for consideration. He also submits that w.e.f 01.04.2011, some specific services availed for construction of a building are not entitled to avail cenvat credit and the services in question are covered under the specific services, therefore, the appellant is not entitled to avail cenvat credit. He further submits that in case of inputs used for construction of a building are not entitled for cenvat credit as per Rule 2 (K) of the Cenvat Credit Rules, 2004. 4. Heard the parties and considered the submissions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants the CENVAT credit was availed prior to registration. Both the appellants contested the show cause notice on merits. The adjudicating authority after following due process of law, did not agree with the contentions raised by the appellant and confirmed demands raised along with interest and also imposed equivalent amount of penalty. The adjudicating authority in both the orders decided the issue against the appellant on the ground that they could not availed CENVAT credit on the input services which are used for construction activity and did not decide the other issues i.e., the invoices being not in the name of the appellant and CENVAT credit was availed prior to registration. And this Tribunal observed as under: 5. On careful consideration of the submissions made by both sides and perusal of records, we find that the issue that falls for consideration of this Bench is whether the service tax paid on Works Contract Services, Project Management and Architectural Professional Services can be considered as input services for the appellant when these services are used for construction of hotel. 6. It is undisputed that the services are utilized for brining to existen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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. 7. Views of the Tribunal have been fortified by decision of the Honble High Court of Gujarat in the case of Mundra Ports and Special Economic Zone Ltd., (supra) the ratio is in paragraph No. 7, 8 9 which we with respect reproduce: 7. It is not disputed that jetty was constructed and input credit was claimed on cement and steel. The aforesaid definition of Rule 2(k) was applicable and Explanation 2 did not provide that cement and steel would not be eligible for input credit. According to learned Counsel for the appellant, the appellant is not manufacturer and, therefore, the provisions of Explanation 2 of Rule 2(k) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Y.N. Ravani, learned counsel for the Revenue has placed reliance on the decision of the Larger Bench of the Tribunal in Vandana Global Limited v. Commissioner of Central Excise, Raipur, 2010 (253) E.L.T. 440. We have carefully gone through the decision of the Larger Bench of the Tribunal. We do not find that amendment made in Cenvat Credit Rules, 2004 which come into force on 7-7-2009 was clarificatory amendment as there is nothing to suggest in the Amending Act that amendment made in Explanation 2 was clarificatory in nature. Wherever the Legislature wants to clarify the provision, it clearly mentions intention in the notification itself and seeks to clarify existing provision. Even, if the new provision is added then it will be new amendment and cannot be treated to be clarification of particular thing or goods and/or input 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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