9911796707
TMI Blog2023 (11) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... sue is whether service tax have been rightly demanded on the electricity and water charges recovered from the tenants by way of reimbursement on actual basis. 2. The brief facts are that the Appellant is engaged in the business of renting of commercial space and is registered under the category of renting of immovable property service and maintenance or repair service. The Appellant have constructed a commercial building during the period October 2007 to March 2010 and they have availed Cenvat Credit of construction services received. The Appellant have let out various units in the said multistorey buildings/office complex to various tenants. The Appellant is paying service tax under the category of renting of immovable property service. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich they are liable to pay tax under the head 'management & repair service'. Further penalty was also proposed under Rule 15 of Cenvat Credit Rules, Section 76 and 78 of the Finance act. 5. The show cause notice was adjudicated on contest vide impugned Order-in-Original dated 28.06.2013 confirming the proposed amount of Cenvat Credit and also appropriating the same with the matching amount already reversed by the Appellant. Further, proposed demand of service tax on electricity & water charges totalling Rs. 2,06,58,119/- was also confirmed. Further equal amount of penalty was imposed under Section 78 read with Rule 15 of CCR for both the demands. Penalty was also imposed under Section 76 of the Act that the rate of 200 per day or 2% of ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GSTL 301 Tri-Hyd] (iv) Oberoi Mall Ltd., [2017 (47) STR 292 (Tri - Mumbai)]. (v) VITP Private Limited. Final Order No. A/30070-30073 dated 08.07.2022. It is further urged that construction service was specifically included in the definition of input service prior to April 2011. Prior to 01.04.2011 the definition of input services in Rule 2(l) of CCR specifically covers any service which is used in relation to setting up, modernisation, renovation, repair of the premises of the provider of output service. In the facts of the present case, Appellant have received works contract services for setting up the commercial premises, from where the Appellant is providing the taxable service - renting of immovable property service. Therefore cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Rule 5 of Service Tax (Determination of Value) Rules 2006 to confirm the demand. It is urged that, the said Rule 5 have been held to be ultravires by the Hon'ble Delhi High Court in the case of M/s Intercontinental Consultants & Technocrates Pvt Ltd., which have been further confirmed by Hon'ble Supreme Court, reported at [2018 (10) GSTL 401 (SC). Admittedly electricity and water in the facts of the present case, have not been consumed in rendering of output service, and the same are not consumables, so far the Appellant is concerned. It is further stated that Section 67 of the Finance Act was amended with effect from 14.05.2015 to include reimbursements of expenses as part of the taxable value of service. In the present case the dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vat Credit under Rule 2(l) of CCR, on construction services or works contract service, the same has been held to be eligible input service for the period prior to 01.04.2011 in the recent judgement of this Tribunal in L & T Infocity and K. Raheja. Similar view was also taken by Hon'ble Andhra Pradesh High court in M/s Sai Samhita Storages (P) Limited, and by Division Bench of this Tribunal in M/s Oberoi Mall Ltd., (supra). Accordingly we hold that the Appellant is entitled to the Cenvat Credit on receipt of input services under dispute. 14. So far the levy of service tax on reimbursement of electricity and water charges is concerned, we find that this very Bench have held that no service tax is chargeable on the amount of recovery of water ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
