TMI Blog2019 (6) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... be entitled for the benefit of Cenvat credit prior to amendment. The 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. Appeal allowed - decided in favor of appellant. - Service Tax Appeal Nos. 50615 of 2015, 50652 of 2015, 50769 of 2015 - Final Order No.50815-50817/2019 - Dated:- 26-6-2019 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) AND MR. BIJAY KUMAR, MEMBER (TECHNICAL) Shri Sumit Nema Sr. Advocate, Shri Harsh Prashar Advocate, Shri Aman Pandey, Advocate - for the appellant Shri Amresh Jain, DR - for the respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstruction of malls were not completed resulting into major non-occupancy and thus no revenue was generated. The lender took steps for recovery of the loan taken by the appellant and due to this unprecendial situation the appellants reversed the Cenvat credit availed by it without utilization and intimated about the reversal to the Department in writing. But the Department did not consider this to be appropriate in terms of the Cenvat Credit Rules and issued various show cause notices which culminated into the impugned adjudication orders/appellate orders. 5. Learned Advocate on behalf of the appellant would submit that the construction or building of civil structures were specifically excluded from the ambit of input services with effect from 1.4.2010 and, therefore, the goods or input services used in the construction of the building remained including in the eligible category of Cenvat credit prior to 1.4.2011. Therefore, it was submitted that input/input services used by the appellant prior to 1.4.2011 were eligible for credit under the Credit Rules. As far as the issue of Cenvat Credit on or after 1 April 2011 were concerned, the appellant reversed the full credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Government bodies. Also, the fact about the availment of Cenvat credit were disclosed by way of footnote in ST-3 returns filed by the appellants. The learned Advocate would further submit that regular audits of the appellant s record were being conducted by the department and the various spot memos had also been issued on this issue and which were duly replied by the appellants. In the circumstances, it is not correct and legal to allege that the appellant had suppressed any relevant fact from the Department so as to invoke the extended period of time for raising the demand under the provisions of Section 73 of the Finance Act, 1994. In support of this assertion, reliance was placed on the judgement of Hon ble Supreme Court in the case of Anand Nishikawa Co. Ltd. Vs. Commissioner of Central Excise -2005 (188) ELT 149 (SC). Further, learned Advocate submitted that in view of above, there is no justification for imposition of penalty on the appellants under the provisions of Section 78 of the Finance Act. 6. Learned AR on behalf of the appellant would submit that the appellants did not provide the output service themselves but got the mall constructed by engaging oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mall as well. 9. It has also been submitted that item on which Cenvat credit is being claimed goes into creation of immovable property and the same is work contract service and there was a restriction imposed on work contract service provider for availment Cenvat credit. Reliance was also placed on the decision of Larger Bench of CESTAT in the case of Tower Vision India Pvt. Ltd. Vs. CCE, Delhi 2016 (42) STR 249 (Tri.-LB) regarding nexus theory for availment of Cenvat credit Rules. 10. Further, reliance was also placed on the decision of Andhra Pradesh High Court in the case of Bharti Airtel Ltd. Vs. Commissioner - 2014 (35) STR 865 (Bom.) and in the case of State of Arunachal Pradesh Vs. BSNL 2012 (25) STR 321 (AP) that wherein it is held that telecommunication tower constitute immovable property as against Delhi High Court decision in the case of Vodafone Mobile Services Ltd. In the case of BSNL (supra), it has been held by the Andhra Pradesh High Court that telecommunication tower are embedded to the earth or rooftop of a building and fastening of such huge structures was necessitated and thus excluded from ambit of goods and constitute imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he inputs, capital goods and input services used by the appellants for providing output services, in terms of Rule 2 (a) (ii) of the Cenvat Credit Rules, 2004, the appellant is entitled to avail Cenvat Credit. Further, this Tribunal observed as under: It is undisputed that the services are utilized for bringing to existence building which is used by the appellants for hospitability business and is used for rendering output services like mandap keeper and health club and fitness centre and dry cleaning service and internet caf 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 bar availment of Cenvat Credit all input services. In orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o avail Cenvat Credit. 14. Similar view has been taken by this Tribunal in the case of DLF Ltd. Vs. CCE Service Tax in Final Order No. 62037-62038/2018 dated 22.3.2018. 15. These findings were followed in other cases, and for the brevity sake, we are not dealing with each one individually. However, we would like to reproduce the Hon bleAndhra Pradesh High Court in the case of M/s Sai Samita Storage supra. The relevant paragraph of the judgment of Hon bleHigh Court is reproduced below : 9. There is no dispute in these cases, that the assessee used cement and TMT bar for providing storage facility without which storage and warehousing services could not have been provided. Therefore, the finding of the original authority as well as the appellate authority are clearly erroneous, which was correctly rectified by the CESTAT in so far as the levy of penalty under Rule 15(2) of the Rules is concerned, unless and until there is a finding that there was suppression of fact, and irregular claim of CENVAT credit, the question of levying penalty under Rule 15(2) of the Rules does not arise. In that view of the matter, the order levying penalty was r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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