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2023 (8) TMI 318 - AT - Service TaxRecovery of inadmissible credits - CENVAT Credit availed on various inputs like steel, cement, other materials used in construction services - invoices raised in the Appellant s Head office address which was different from the place of use of inputs - Service Tax computed on the differential calculation made, basing on the price agreed in the bilateral agreement and the actual amount collected against invoices raised for renting of immovable property by the Appellant from its tenants. HELD THAT - On the point of admissibility of credits on steel, cement etc., Appellant s stand is consistently in favour of its complete availability up to 07.07.2009 till Notification No. 16/2009-CE introduced an explanation-II into the definition of inputs . Undisputedly credits were admissible on purchase and use of those items up to the amendment was brought on record on 07.07.2009. Learned Counsel for the Appellant took the stand that if period beyond 07.07.2009 till the subsequent amendment made on 01.04.2011 is to be taken as the period on which credit is also inadmissible, then only about Rs.7 lakhs some odd amount of credits were availed by the Appellant after 07.07.2009. Department placed its reliance solely on the judgment of Larger Bench of this Tribunal passed in the case of Vandana Global 2008 (6) TMI 400 - CESTAT, NEW DELHI wherein it was held that Explanation-II to Rule 2(k) of CENVAT Credit Rules, 2004 inserted vide Notification No. 16/2009-CE was clarificatory in nature and hence it has retrospective application w.e.f. 2004 but the same judgment has been overruled by the Hon'ble High Court of Chhattisgarh in 2018 (5) TMI 305 - CHHATTISGARH, HIGH COURT . This being the position of law, going by the submissions of learned 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. Disputed credit that taken after 07.07.2009 - HELD THAT - It is required to be mentioned here that in placing reliance on the judgment on the issue raised by the adversaries including that of M/s Mundra Port SEZ Ltd. 2015 (5) TMI 663 - GUJARAT HIGH COURT and M/s. Vandana Global 2018 (5) TMI 305 - CHHATTISGARH, HIGH COURT and after going through the amended definition of input service brought w.e.f. 07.07.2009, the above referred order was handed out. In carrying forward the judicial precedent set by our own Tribunal, we are inclined to conclude our findings that the entire credit availed by the Appellant-service provider in respect of goods purchased for construction of premises are admissible credits. Further, in view of the decision of the Hon'ble High Court of Gujarat passed in the case of CCE Vs. Dashion Ltd. 2016 (2) TMI 183 - GUJARAT HIGH COURT and the settled position of law that ISD registration cannot be a pre-condition precedent for availment of CENVAT Credit on inputs services post October, 2010 - The reason cited in the Order-in-Original that addresses mentioned in the invoices were different is unsustainable in law unless it is established that the services were not actually availed by the assessee on which credits were taken by it. Demand of Service Tax on the basis of the value shown in the lease rental agreement documents - HELD THAT - There is no denying of the fact that no subsequent change of the terms and conditions of the agreement were made in respect of those documents by way of addendum or amendment of those agreement and admittedly lesser amount on the basis of sale turnover was taken to be the rent of the property in respect of most of the tenants, though agreements indicate that higher amount was to be billed and collected by the Appellant but this cannot form the basis to make a duty demand since invoice value, which is consistent with the collection of rent value, would determine the taxability irrespective of the fact that it is inconsistent with the agreed upon terms. To put it differently, any agreement can be breached by either of the parties against which civil remedy by way of liquidated or unliquidated damaged can be claimed in a civil court and parties can be at variance to the terms of agreement on mutual consent through an oral agreement but it would be out of purview of any 3rd party including the tax authorities to compel observation of the conditions of the contracts/agreements, other than the parties who are signatories to it. Appeal allowed.
Issues Involved:
1. Recovery of inadmissible CENVAT Credits. 2. Demand of Service Tax based on lease rental agreements. Summary: Issue 1: Recovery of Inadmissible CENVAT Credits The order for recovery of CENVAT Credits of Rs. 2,24,25,358/- availed on inputs and input services was challenged. The Appellant argued that credits on inputs like steel, cement, and construction services availed prior to 01.04.2011 were admissible. The Tribunal noted that credits were admissible up to 07.07.2009, when Notification No. 16/2009-CE introduced an explanation-II into the definition of "inputs." The Tribunal held that credits availed prior to 07.07.2009 amounting to Rs. 1,07,33,533/- were clearly admissible. The Tribunal also concluded that the entire credit availed by the Appellant in respect of goods purchased for construction of premises were admissible credits, citing the precedent set by the Hon'ble High Court of Gujarat and the Tribunal's own judgment in the case of Bridge & Roof Co. (India) Ltd. vs. CCE & ST, Vadodara-I. Issue 2: Demand of Service Tax Based on Lease Rental Agreements The demand of Service Tax of Rs. 53,31,866/- was based on the value mentioned in the lease rental agreements. The Appellant argued that lesser amounts were collected due to inadequate business turnover, despite the higher amounts specified in the agreements. The Tribunal held that the invoice value, consistent with the actual collection of rent, would determine the taxability, irrespective of the agreed terms in the lease agreements. The Tribunal emphasized that any variance to the terms of the agreement on mutual consent through an oral agreement is out of the purview of tax authorities. Conclusion: The appeal was allowed, and the order passed by the Commissioner of Central Excise, Customs & Service Tax, Nashik-I was set aside with consequential relief.
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