2014 (10) TMI 604 - AT - Service Tax

Waiver of pre deposit - Eligibility of Cenvat Credit - construction of an immovable property - Held that - in the case of Sai Sahmita Storages (P) Ltd. 2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT and this tribunal in the case of Navratna S.G. Highway Pro. (P) Ltd. 2012 (7) TMI 316 - CESTAT, AHMEDABAD has held that Cenvat Credit of service tax paid on input services used in the construction of immovable property would be available if such immovable property is used for rendering other taxable services. Following the same in the present case also, we hold that the appellant has made out a prima facie case for grant of stay. Accordingly, we grant unconditional waiver from pre-deposit of dues adjudged against the appellant and stay recovery thereof during the pendency of the appeal - Stay granted.

Summary

Issues:
1. Disallowance of Cenvat Credit on input services for construction of a mall.
2. Confirmation of service tax demand, interest liability, and penalties under Sections 77 and 78.
3. Applicability of previous judgments on Cenvat Credit eligibility for input services in construction projects.

Analysis:
1. The appeal challenged the disallowance of Cenvat Credit amounting to Rs. 2,02,62,906/- for input services used in constructing a mall rented out to customers. The Commissioner imposed service tax demand, interest liability, and penalties under Sections 77 and 78. The appellant contended that previous Tribunal orders supported their eligibility for service tax credit on input services in construction projects.

2. In the first round of litigation, the Tribunal granted a stay and remanded the matter to the adjudicating authority for clear findings on the appellant's eligibility for service tax credit. The authority, in the second round, relied on a High Court decision regarding warehousing, not addressing the specific issue of Cenvat Credit for construction projects. The appellant cited judgments from other High Courts and Tribunals supporting their position on Cenvat Credit eligibility for input services in construction projects.

3. The Tribunal noted that the High Court decision relied upon by the adjudicating authority did not address the eligibility of Cenvat Credit on input services for construction of immovable property. Referring to judgments from the High Court of Andhra Pradesh and previous Tribunal decisions, the Tribunal held that Cenvat Credit for service tax paid on input services in construction projects would be available if the property is used for providing taxable services. Consequently, the Tribunal granted an unconditional waiver from pre-deposit and stayed the recovery of dues during the appeal's pendency.