TMI Blog2020 (6) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the Cenvat credit of the payment made towards such service. Club Membership service and the Cenvat credit availed on the fee paid for the same - HELD THAT:- It was the appellant's burden to prove that this was also the service which was required for enabling them to render the output service of renting of immovable property. It is observed that except for the mention that club was used as a place to have contact with the people of standing there is no other submission of the appellant to justify the service to the input service - no nexus has been established between the availment of Club Membership and the output service of of the appellant i.e. Renting of Immovable Property - credit cannot be allowed. Maintenance and Repair Services - HELD THAT:- Perusal of the order of the adjudicating authority below shows that the Cenvat credit on Maintenance and Repair Services has been denied for want of nexus of the said services to the output service provided by the Appellant. In absence of the said Bill but in view of the acknowledgement that the Maintenance and Repair Services were received for the premises which have been rented out by the Appellant and also that the Bill i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed initially by the original adjudicating authority Order No. 58/2015 dated 31.08.2015. The appeal thereof was rejected vide the order-under-challenge. Being aggrieved the appellant is before this Tribunal. 3. I have heard Mr. Sparsh Bhargava, learned Advocate for the appellant and Mr. Pradeep Gupta, learned DR for the Department. It is submitted on behalf of the appellant that the commercial construction services, club membership services and maintenance repair services were received by the appellant as an input for providing the output services as that of the renting of immovable property. 4. It is submitted that for receiving the commercial construction services from M/s R.K. Enterprises the impugned credit has been availed based on Invoice No. 001 dated 02.09.2017. Learned Counsel has impressed upon that all ledgers and the bank statements were supplied to the department at the time of submitting reply to the show cause notice proving the said payment to the service provider M/s R. K. Enterprises and as such the credit has rightly been availed as far as the commercial construction services are concerned. Department has failed to observe those documents instead has relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the said letter was not be relied upon document. It is further submitted that the order-under-challenge is containing the meticulous and detailed reasons for denying the eligibility of the appellant to claim the Cenvat credit. Para-5 of the order is impressed upon. Accordingly, while justifying the order-under-challenge appeal in hand is prayed to be dismissed. 8. After hearing the rival contentions of both the Parties, I observe and hold as follows: The Appellant is admittedly providing Renting of Immovable Property services, the department has denied availment of Cenvat credit qua the services received by the appellant as that of commercial construction, club membership fee and maintenance charges during the period 2007-08 on the ground that since none of the services are the input services the appellant cannot avail Cenvat credit thereupon. With respect to maintenance charges, it is the case of the department that those were received prior the maintenance service came into taxnet. Hence, the question of availing Cenvat credit thereupon does not at all arise. 9. In view of these observations, moot controversy, to my opinion to be adjudicated in this case is as to : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee of the impugned services, I hold as follows: 1. Commercial Construction Services : Apparently and admittedly, the appellant is a provider of Renting of Immovable Property Services. Admittedly, the premises for which commercial construction services were received were let out by the appellant for providing the services of renting of immovable property. These admissions clarify had there been no constructed building there would have been no possibility for any service of being rented out to be provided by the Appellant. Thus, it becomes clear that the services of commercial construction as were received by the appellant for providing the output service have a direct nexus to each other. In fact, in view of above definition such services fall under the inclusive part of the aforesaid definition. I draw my support from the decision of High Court of Gujrat in the case of Mudra Ports SEZ Ltd. reported as 2015 (39) STR 726 (Guj) where it was held that any input/input service as that of construction of a building which has been let out while providing output service of Renting of Immovable Property, Cenvat Credit for the said construction shall be available to the said serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Counsel has relied upon ITC Ltd (supra) case. The perusal clarifies that the said decision is not applicable to the fact and circumstances of the present case, because in that the clubs were used by the assessee therein for holding business meetings, training workshops and marketing and promotional activities which admittedly is not the fact of the present case. Accordingly, I am of the opinion that no nexus has been established between the availment of Club Membership and the output service of of the appellant i.e. Renting of Immovable Property. Hence, I am of the opinion that learned Commissioner has committed no error while denying the Cenvat credit availed for the said services and confirming the recovery thereof. 3. Maintenance and Repair Services: The department has alleged the said services to have been received prior to 01.06.2007 when those services were not taxable. Department though has relied upon the Bill of 01.06.2007 in that respect but it is impressed upon by the Appellant that the payment was for the month of June, 2007. Neither the department nor the Appellant has produced on record the said Bill. Perusal of the order of the adjudicating authority bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, held wrong. 15. Also it has already been held that services as were received by the Appellant were actually received for providing the output service of renting of immovable property except that the service of club and fee is denied. The said findings are sufficient to falsify the allegation of wilful suppression on part of the Appellant. 16. The allegations of Invoice No. 001 to be fake/fraudulent also cannot be the basis of invocation of extended period of limitation for the reason that only basis for including the said invoice to be fake is the letter of M/s R.K. Enterprises, the service provider of the appellant. The said letter is not even a relied upon document otherwise also there is no enquiry made by the department to corroborate the contents of the said letter. More so the letter is not specifically alleging the invoice No. 001 to be fake except for stating to provide no commercial construction services to appellant in the year 2007-2008. Hence, it becomes clear that there is no wilful suppression on behalf of the appellant as is alleged. It stands clear that the show cause notice since being issued beyond a delay of three years. 17. The same is held to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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