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2019 (5) TMI 372 - AT - Service TaxCENVAT Credit - inputs/capital goods/input services - construction and later maintenance of the mall during the period October, 2007 to March, 2012 - Time limitation - HELD THAT - CENVAT Credit is admissible to the appellant on the duty paid on capital goods and service tax paid on input services used in the setting up of the new premises i.e. the Mall which is later provided on rent and service tax has been paid on Renting of Immovable Property Service and the input services used in providing the said output services. The demand is also not sustainable being barred by limitation as the details of availing of the Cenvat Credit of the duty paid on Capital goods and service tax paid on input services used in setting up of the Mall and used for providing the output service has been intimated to the department in April 2010. Appeal succeeds both on merit and limitation
Issues Involved:
1. Eligibility of CENVAT Credit on capital goods used in the construction of the mall. 2. Eligibility of CENVAT Credit on input services used in the construction of the mall before and after 01.06.2007. 3. Eligibility of CENVAT Credit on input services used for rendering the output service of Renting of Immovable Property. 4. Applicability of the extended period of limitation for recovery of the CENVAT Credit. 5. Imposition of penalty on the appellant. Detailed Analysis: 1. Eligibility of CENVAT Credit on Capital Goods: The appellant contended that capital goods such as Air Conditioning systems, Escalators, Transformers, DG Sets, and electrical accessories, which fall under Chapters 82, 84, 85, and 90 of the Central Excise Tariff Act, 1985, were used in the construction of the mall. These goods satisfy the definition of 'capital goods' under Rule 2(1) of the CENVAT Credit Rules, 2004, and are thus eligible for credit. The Tribunal agreed with this contention, referencing previous judgments such as City Centre Mall Nashik Pvt. Ltd. vs. CCE&ST, which supported the admissibility of CENVAT Credit on capital goods used in the construction of a mall. 2. Eligibility of CENVAT Credit on Input Services Used in Construction: The appellant argued that input services used in the construction of the mall, such as Architect Services and Works Contract Services, should be eligible for CENVAT Credit. They cited the definition of 'input service' under Rule 2(l) of the CENVAT Credit Rules, which includes services used in relation to setting up the premises of the provider of output services. The Tribunal upheld this view, referencing cases like Navaratna S.G. Highway Prop. Pvt. Ltd. and Vamona Developers Pvt. Ltd., which established that input services used in the construction of a mall are eligible for CENVAT Credit if the mall is used to provide taxable output services. 3. Eligibility of CENVAT Credit on Input Services for Renting of Immovable Property: The appellant maintained that input services used to render the output service of Renting of Immovable Property should be eligible for CENVAT Credit. The Tribunal agreed, noting that the input services were essential for the construction and operation of the mall, which was subsequently rented out, generating taxable output services. The Tribunal cited several judgments, including Oberoi Mall Ltd. and City Centre Mall Nashik Pvt. Ltd., which supported the nexus between input services used in construction and the provision of renting services. 4. Applicability of Extended Period of Limitation: The appellant argued that the extended period of limitation should not be invoked as they had disclosed all relevant facts to the department through their letter dated 01.04.2010. The Tribunal agreed, stating that the issue involved an interpretation of the definition of 'input services' and 'capital goods,' and there was no evidence of intent to evade tax. Consequently, the demand was barred by limitation. 5. Imposition of Penalty: The appellant contended that the imposition of a penalty was unjustified. The Tribunal concurred, noting that the issue was one of interpretation and there was no suppression of facts with intent to evade tax. Therefore, the imposition of a penalty was deemed inappropriate. Conclusion: The Tribunal concluded that the appellant was eligible to avail CENVAT Credit on the capital goods and input services used in the construction and maintenance of the mall. The demand for recovery of CENVAT Credit was barred by limitation, and the imposition of a penalty was unjustified. The appeal was allowed, and the impugned order was set aside, providing consequential relief to the appellant as per law.
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