TMI Blog2021 (5) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... of immovable property and without construction of the building, the renting of immovable property cannot be provided, the credit remains allowed. It is noticed that the renting of Immovable Property Service came into existence with effect from 01.06.2007 and therefore credit of Commercial and Industrial Construction Service for the period prior to levy of service tax on Renting of Immovable Property Service cannot be allowed. The credit of services availed after 01.06.2007 is however admissible. Cenvat credit for prior period - other output services namely Banking and Financial Services, Goods Transport Agency Service, Management and Maintenance and Repair Service and Sponsorship Service - HELD THAT:- The services specified above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Repair Service and Sponsorship Service. The appellant availed Cenvat credit of these services of commercial and industrial construction availed by them for construction of their premises. It was alleged that the appellant did not use the said services for provision of output services mentioned above. It was specifically pointed out that the renting of Immovable Property Service became chargeable to service tax effect from 01.06.2007. It was alleged that the Banking and Financial Services, Management and Maintenance Repair Services and Renting of Immovable Property do not entail the use of Commercial and Industrial Construction Services. The demand was confirmed by the adjudicating authority. Interest and penalty were also imposed. Aggr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jalpur Vs. Vodafone Essar Gujarat Ltd. 2006 (199) ELT 15 (Tri.- Mum) Indorama Synthetics Ltd Vs. CCE, Nagpur 2018 (360) ELT 86 (Bom)- Manikgarh Cemnet Vs. CCE, Nagpur 4.1 He argued that the only goods can qualify under the definition of capital goods. He argued that the buildings are not goods and therefore they did not qualify as capital goods. 5 We have considered the rival submissions. we find that the issue regarding admissibility of Cenvat credit on Commercial and Industrial Construction Service used for construction of building which in turn are used for renting purpose has been settled by Hon ble High Court of Madras in case of DYMOS INDIA AUTOMOTIVE PVT LTD 2019 (365) ELT 26 (Mad). In the said decision following has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n service is an eligible service for credit for providing output service of renting of immovable property. 11 . In our considered view, the conclusion of the Tribunal is well founded, as construction service is an eligible service for credit for providing output service of renting of immovable property and without construction of the building, the renting of immovable property cannot be provided. We are also of the opinion that there is no error in the decision taken by the Tribunal. 5.1 As far as the reliance of Authorized Representative on the following decision: 2017 (52) STR 434 (Tri- Ahmd) Fascel Ltd Vs. CST, Ahmedabad 2014 (35) STR 865 (Bom) Bharti Airtel Ltd Vs. CCE, Pune III 2018 (8) GSTL 105 (Guj) C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised before the lower authorities and therefore, there are no findings in this aspects in the impugned order. Moreover it is also not clear if the said services Banking and Financial Services, Goods Transport Agency Service, Management and Maintenance and Repair Service and Sponsorship Service were provided from same premises or from elsewhere. Admissibility of the credit is the question of law and therefore the appellant s can raised at the stage of first appellate level also. Since this aspect has not been examined by the lower authorities the impugned order is set aside and the matter is remanded to the original adjudicating authority for fresh consideration after taking note of above observations. 6. The impugned order is set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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