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2019 (6) TMI 1326 - AT - Service TaxCENVAT credit - inputs/capital goods/input services which had been consumed in the construction of malls - whether the appellants are eligible to avail the Cenvat credit on the services supplied to them by their job workers/contractors for which raw materials have been supplied by them? - period prior to the amendment of the provisions of input services under the Credit Rules i.e. prior to 2011 and also subsequent to that period - HELD THAT - The issue is no longer res integra in view of the decision of Hon ble Andhra Pradesh High Court in the case of COMMR. OF C. EX., VISAKHAPATNAM-II VERSUS SAI SAHMITA STORAGES (P) LTD. 2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT which was subsequently followed in various other cases. In all these cases, the issue was similar and identical and it was held by various Tribunals/High Court that in such a situation, the appellant would be entitled for the benefit of Cenvat credit prior to amendment. The learned AR has placed reliance that the services were not directly provided by the appellant, but was through their contractors. It is argued that these contractors were employed by the appellant, who were provided raw materials to them. Also these contractors have paid the service tax and recovered that from the appellant. Hence, we find that the appellants have rightly taken the Cenvat credit as per Credit Rules - It is of no relevance as to whether the construction has been done through the contractors or not as long as service tax is paid, the appellant is entitled for Cenvat credit and subsequent utilisation thereof for payment of service tax. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Eligibility of Cenvat credit on inputs, capital goods, and input services used in the construction of malls. 2. Applicability of penalties and extended period of limitation for demand of Cenvat credit reversal. 3. Nexus between input services and output services provided by the appellants. 4. Relevance of amendments in Cenvat Credit Rules post-2011. Detailed Analysis: 1. Eligibility of Cenvat Credit on Inputs, Capital Goods, and Input Services: The appellants are engaged in setting up shopping malls and availed Cenvat credit on inputs, capital goods, and input services used in construction. The primary question is whether such credit is allowable for providing taxable output services. The Tribunal referred to several precedents, including the Andhra Pradesh High Court's decision in *Sai Sahmita Storages (P) Ltd.*, which affirmed that Cenvat credit on inputs and services used in the construction of facilities for providing output services is permissible. The Tribunal reiterated that the appellants are entitled to Cenvat credit as long as the services are used for providing taxable output services like renting of immovable property. 2. Applicability of Penalties and Extended Period of Limitation: The appellants argued that the extended period of limitation is not applicable as they disclosed all relevant facts to the department, which was aware of their activities. They cited the Supreme Court judgment in *Anand Nishikawa Co. Ltd. vs. Commissioner of Central Excise* to support their claim that there was no suppression of facts. The Tribunal agreed, noting that regular audits were conducted, and the appellants had communicated their Cenvat credit reversal to the department. Consequently, the imposition of penalties under Section 78 of the Finance Act was deemed unjustified. 3. Nexus Between Input Services and Output Services: The department contended that the appellants did not directly provide construction services but engaged contractors, thus questioning the nexus between input services and output services. However, the Tribunal found this argument irrelevant, emphasizing that as long as service tax is paid and the services are used for providing taxable output services, the appellants are entitled to Cenvat credit. The Tribunal referenced the *Maruti Suzuki vs. CCE* case, which underscored the necessity of a nexus between input services and output services, and concluded that the appellants met this requirement. 4. Relevance of Amendments in Cenvat Credit Rules Post-2011: The appellants argued that the exclusion of construction services from the definition of input services took effect from 1 April 2011, and credits availed prior to this date were eligible. They reversed the credit availed post-2011 and communicated this to the department. The Tribunal acknowledged this compliance and noted that the amendments to the Cenvat Credit Rules post-2011 do not affect the eligibility of credits availed before the amendment. Conclusion: The Tribunal concluded that the appellants are entitled to avail Cenvat credit on inputs, capital goods, and input services used in the construction of malls for providing taxable output services. The imposition of penalties and the invocation of the extended period of limitation were deemed inappropriate. The Tribunal set aside the impugned orders and allowed the appeals with consequential benefits, affirming the appellants' eligibility for Cenvat credit and the proper reversal of credits post-2011.
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