9911796707
TMI Blog2023 (8) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... remises having space for shops etc. to business conductors like Big Bazar, Adidas, Liliput, Provogue etc. It has got service tax registration under Nashik Commissionerate for "Business Support Service" and "Transport of Goods by Road Service". On the basis of intelligence gathered, Director General of Central Excise Intelligence (DGCEI) of Nashik Regional Unit conducted investigation and observed that for construction of the said commercial complex over the erstwhile Khandesh Mill, Appellant had purchased cement, steel, tiles, pipes, water proofing materials etc. and availed CENVAT Credit on those inputs used for construction of building or civil structure which is nothing but immovable property, not subjected to excise duty or Service Tax but it had availed CENVAT Credits on inputs services like Manpower Supply Agency Service, Architect Service, Telephone etc. when a major portion of the invoices/bills were raised in the name of its head office at Mumbai. Further, it had entered into agreements with different companies to rent out its premises at different rates ranging from Rs.25 to Rs.50/- per sq. ft. for different periods ranging from 1 year to 9 years. Simultaneously, it was o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definition of input vide Notification No. 16/2009 on dated 07.07.2009, though not specifically invoked in the show-cause notice that excludes goods used in the manufacture of capital goods for further use in the factory like cement, angles, channels etc., demand of Rs.1,12,91,950/- was confirmed but by that time i.e. before 07.07.2009, credit to the extent of Rs.1,07,33,533/- was already availed and utilised which was clearly admissible in view of the prevailing Rule then and in view of the judgment of the Hon'ble High Court of Gujarat that overruled judgment of Mundra Port and SEZ Ltd. of the Tribunal reported in 2015 (39) STR 726 (Guj.). Further, placing reliance on the various judgments in the case of CGST Vs. Dymos India Automotive Pvt. Ltd. reported in 2019 (365) ELT 26 (Mad.), Navratan S.G. Highway Properties P. Ltd. Vs. CST reported in 2012 (28) STR 166 (T), Reliance Gas Transportation Infrastructure Ltd. Vs. CST, reported in 2016 (45) STR 286 (T), Reliance Corporate IT Park Ltd. Vs. CCE reported in 2023 (2) TMI 826 - CESTAT Mumbai, Upal Developers Pvt. Ltd. Vs. CCE in Appeal No. 70278 of 2017, Oberoi Mall Ltd. Vs. CST reported in 2016 (3) TMI 854- CESTAT Mumbai, Regal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered office had not registered it as IST and, therefore, the order passed by the Commissioner is liable to be set aside. 5. In response to such submissions, learned Authorised Representative for the Respondent-Department Mr. Badhe Piyush Barasu arguing in support of the reasoning and rationality of the order passed by the Commissioner and drawn our attention to the fact that by the time order was passed by the Commissioner in January, 2015 Tribunal's judgment on Vandana Global was holding the field and even the judgment of Adani Port and SEZ Ltd., cited supra, had not been pronounced and, therefore, the order passed by the Commissioner in placing reliance on Mundra Port and SEZ Ltd. cited supra holding that credit of excise duty paid on construction material was not admissible and retrospective effect of the amended definition of input having attained judicial approval by the Tribunal in Vandana Global case, no irregularity could be noticeable in the order passed by the Commissioner that would require intervention of this Tribunal. 6. We have perused the case record, relied upon case laws and other materials produced by adversaries. As could be noticed, there were two types ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel on the facts of the case, out of total credit of Rs.1,12,91,950/- availed on cement and steel, credit to the extent of Rs.1,07,33,533/- being availed prior to 07.07.2009 were clearly admissible credits. Now coming to the disputed credit that was taken after 07.07.2009, apart from the submissions of Appellant that neither the Notification No. 16/2009-CE was pressed into service not any reference to the subsequent amendment made on 01.04.2011 was referred in the show-cause notice and that such restriction in 2009 on taking credits against goods used in manufacture of capital goods was meant for manufacturer of finished goods and not for service provider, we would like to place on record findings of this Tribunal made at its Bench at Ahmedabad in the case of Bridge & Roof Co. (India) Ltd. Vs. CCE & ST, Vadodara-I on dated 15.06.2023 in Service Tax Appeal No. 13327 of 2013-DB, the relevant portion of which reads:- "From the plain reading of the explanation-2 it can be seen that explanation-2 is exclusively applicable to manufacturer and not to service provider. Therefore, the entire case based on the amendment in explanation-2 cannot sustain. Further, as regards the admissibl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
