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TMI Blog2019 (6) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... put service i.e renting of immovable property, maintenance and repair service, advertising service, GTS services, management and consultancy services etc. By the impugned orders, learned Commissioner/Commissioner (Appeals) have confirmed recovery of Cenvat credit under Rule 14 of Cenvat Credit Rules, 2004 (hereinafter referred to as the 'Credit Rules' ) read with Section 73(1) of the Finance Act, 1994 (for short, 'Act') along with applicable interest. In these impugned orders, the appellants have also been imposed a penalty of equal amount of Cenvat Credit availed under Rule 15(3) of the Credit Rules. 3. The basic issue to be decided, in these appeals, is as to whether the availment of Cenvat credit of excise duty/additional customs duty (CVD) paid on the inputs, the capital goods and the credit of service tax paid on input services which had been consumed in the construction of malls were allowable for further in providing taxable output services. 4. The appellants were engaged in setting up shopping mall at Chandigarh, Jabalpur and Raipur, somewhere in the year 2009. For the construction of shopping malls, the appellant engaged various contractors, who provided construction ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai Sahmita Storages (P) Ltd. -[2012] 17 taxmann.com 107 (AP); (ii) M/s Navaratna S.G. Highway Prop. Pvt. Ltd Vs. The Commissioner of Service Tax (CESTAT-Ahmedabad) in appeal No. ST/568/10 (2011-TIOL-1703-CESTAT-Ahm); (iii) Nirlon Ltd. Vs. Commissioner of Central Excise, Mumbai (CESTAT-Mumbai) (2016) TIOL-1571-CESTAT-MUM; (iv) Oberoi Mall Vs. Commissioner of Service Tax, Mumbai-II (CESTAT-Mumbai) - (2016)-TIOL-704-CESTAT-MUM; (v) Alpha Corp. Development Pvt. Ltd. Vs. Commissioner of Service Tax, Delhi (CESTAT-Delhi) (2018)-TIOL-20165; (vi) M/s Ruchi Malls Pvt. Ltd. Vs. Commissioner of Central Excise, Delhi-I (CESTAT-Delhi) 2018-TIOL-1991; (vii) M/s Navin Fluorine International Ltd. Vs. Commissioner of Central Excise, Indore (CESTAT-Delhi) Appeal No. 50344/13; (viii) M/s DB Malls Pvt. Ltd. Vs. CGST, CE & CC, Bhopal (CESTAT-Delhi)- Appeal No. ST/57043/13; (ix) M/s Z Square Shopping Mall Pvt. Ltd. Vs. Commissioner of Central Excise & Service Tax, Kanpur (CESTAT-Allahabad) - 2018-TIOL-2040. In these cases it has been held that the appellants were entitled for Cenvat credit on inputs, capital goods and input services availed during the construction of Mall for providing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n output service of construction in their ST-3 returns and have not discharged any service tax liability for construction service of mall. It was also submitted that the noticee have not provided any construction service as output service and hence there is no nexus between the input, input services and Cenvat credit on capital goods vis-a-vis the provisions of output service. The reliance was placed on the judgement of Maruti Suzuki Vs. CCE - 2009 (240) ELT 641 (SC) wherein it is held that the principle of nexus between the input and input services to output services is sine-qua-non is must cenvatability of input and input services, which is not directly provided as the services have been provided by the contractor of the appellant and not the appellant themselves. It was also submitted that the document evidencing the payment of Central Excise duty/service tax on inputs, input services and on capital goods were not produced before the adjudicating authority and therefore, the credit has been taken without the production of cenvatable invoice. These cenvatable invoices were available with the contractors who had provided service. Thus, the appellant had got only output services of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the case records. 13. The issue to be decided in these cases is as to whether the appellants are eligible to avail the Cenvat credit on the services supplied to them by their job workers/contractors for which raw materials have been supplied by them. The demand in question is prior to the amendment of the provisions of input services under the Credit Rules i.e. prior to 2011 and also subsequent to that period. The issue is no longer res integra in view of the decision of Hon'bleAndhra Pradesh High Court in the case of Sai Sahmita Storages (P) Ltd. referred (supra) which was subsequently followed in various other cases as enumerated in para 4.1 of the order. In all these cases, the issue was similar and identical and it was held by various Tribunals/High Court that in such a situation, the appellant would be entitled for the benefit of Cenvat credit prior to amendment. In case of DB Malls, this Tribunal vide its Final Order No. 51699/2018 dated 20.4.2018 held as under: "6. Regarding the capital goods, the matter has come up before the Tribunal in the case of DLF Ltd. V/s CCE & ST, Delhi, Final Order No. 62037-62030/2018 dated 22/03/2018 where the issue pertaining to the capita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and 3 Appeal No.ST/3089/2012 quality control, coaching and training, computer networking, credit rating, share registry and security, inward transportation of inputs or capital goods and outward transportation upto the place of removal. It can be seen from the above reproduced sub-rule, that input services includes the services used in relation to setting up, modernization, renovation of premises of provider of output services. In the case in hand, the definition is reproduced as above categorically will apply and the clarification given by the Board in CBEC Circular dated 04/01/2008 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 Gs Transportation Infrastructure Ltd. (supra) , holding that these services were utilized for bringing into existence an immovable property. The Bench after considering the definition of input services, held that the provisions of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operationalised, using these credit lying in balance. 17. We also find that learned AR has placed reliance that the services were not directly provided by the appellant, but was through their contractors. It is argued that these contractors were employed by the appellant, who were provided raw materials to them. Also these contractors have paid the service tax and recovered that from the appellant. Hence, we find that the appellants have rightly taken the Cenvat credit as per Credit Rules. It is of no relevance as to whether the construction has been done through the contractors or not as long as service tax is paid, the appellant is entitled for Cenvat credit and subsequent utilisation thereof for payment of service tax. 18. We further find that this Tribunal in case of EDWL has allowed Cenvat credits to the appellant which was on similar set of facts and circumstances. We reproduce the appropriate portion of the order as under: 8. In view of above we set aside the impugned order and allow the appeals with consequential benefit. We also find that learned AR has placed reliance that the services were not directly provided by the appellant, but was through their contractors. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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