TMI Blog2018 (3) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... pril 2011 whereas in the month of March 2011 the closing balance was nil - whether the appellant is entitled for the credit in respect of inputs, input service and capital goods received and used prior to 1.4.2011 for construction of mall? - Held that: - it is only a clerical error on the part of the appellant in making entry of CENVAT credit which was otherwise admissible to them. Even if the entry of CENVAT credit on individual services are made on the date of receipt or the consolidated amount for the said credit was shown as opening balance of credit of April 2011 so long there is no dispute about the amount of the credit. CENVAT Credit cannot be denied only for such clerical error. The appellant is not entitled for cenvat credit, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order-in-original, appellant filed the present appeal. 2. Shri G. Natrajan, Ld. Counsel appearing on behalf of the appellant submits that on the issue involved here in this Tribunal and various High Courts have passed the judgments wherein it was held that the cenvat credit on the inputs, input service and capital goods used for constructing a mall is admissible and the said credit can be utilized for payment of service tax on the output service that is renting of said mall. He placed reliance on the following judgments: (i) City Centre Mall Nashik Pvt. Ltd. Vs. Commissioner of Central Excise And Service tax, Nashik 2017-TIOL-4322-CESTAT-MUM (ii) Oberoi Mall Ltd. Vs. Commissioner of Service Tax, Mumbai-II 2017 (47) STR 292 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Vs. Commr. Of S.T. Ahmedabad 2012 (28) STR 166 (TYri.-Ahmd.) and Sai Samhita Storages Pvt. Ltd. Vs. C.C. C.E. 2010 (255) E.L.T. 91 (Tri.-Bang.). However as per the department the appellants have not paid service tax on commercial or industrial construction service with regard to construction of mall, hence cenvat credit in respect of inputs/input service/capital goods is not admissible. He further submits that the mall constructed by the appellant cannot be treated as goods being embedded to earth and immoveable. He further submits that the appellant have not substantiated the bifurcation of the cenvat credit that is inputs/input service/capital goods and the details of the same have not been shown in the ST.3 Returns. He further subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtising 2013-31-STR 166-T-Del; (xiv) Vodafone Digilink Vs. CCE 2013-29-STR-229-Raj . He also submits that the extended period was rightly invoked as the appellant have not disclosed the correct position in their ST.3 returns. Therefore the extended period was rightly invoked for confirmation of demand. In this regard he placed reliance on the following judgment: (i) Touraid Travels Vs. CCE 2014(35) STR 235 (All.) (ii) CCE Vs. Reliant Advertising 2013-31-STR 166-T-Del; (iii) Vodafone Digilink Vs. CCE 2013-29-STR-229-Raj. 4. We have carefully considered the submissions made by both the sides. We find that the issue to be decided by us are as under: (a) Whether the appellant is entitled for cenvat credit in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision of this Tribunal in the case of City Centre Mall Nashik Pvt. Ltd., following the judicial discipline we cannot deviated from our views already taken unless until there is substantial change of circumstances in this settled legal position. Since we have already considered all the judgments relied upon by the Ld.AR we need not to discuss each and every case again and again. As regard the issue that the appellant have shown the entire credit as opening balance of April 2011 which pertains to the period prior to completion of construction of mall. We find that it is only a clerical error on the part of the appellant in making entry of cenvat credit which was otherwise admissible to them. Even if the entry of cenvat credit on individ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
