2016 (2) TMI 417 - AT - Service Tax

Cenvat Credit - Scope of input services utilised to provide Renting of Immovable Property as Output Services - payment of service tax on construction of premises which he intended to put to use as commercial complex and rented out the premises to various entities - Held that - tax liability on renting of immovable property will not arise unless the immovable property comes into an existence, such immovable property will be in the nature of constructed building/warehouse. - unless the commercial complex is constructed and completed in all respects, the same could not be rented out by the appellant is a common sense - credit allowed - Decided in favor of assessee.

Summary

Issues:
1. Availment of CENVAT credit on input services and goods for discharging service tax liability.
2. Interpretation of CENVAT Credit Rules, 2004 regarding eligibility of CENVAT credit.
3. Applicability of CBEC Circular No. 98/1/2008-ST.
4. Comparison with relevant case laws and judicial precedents.

Issue 1: Availment of CENVAT credit on input services and goods for discharging service tax liability:
The appellant availed CENVAT credit of service tax paid on input services and goods to discharge service tax liability under "Renting of Immovable Property Services" from April 2007 to March 2009. The revenue authorities contended that CENVAT credit on such inputs was not eligible as per CBEC Circulars. A show-cause notice was issued invoking the extended period for demand of ineligible CENVAT credit, interest, and penalties. The appellant contested on merits and limitation, but the adjudicating authority confirmed the demands and penalties based on the CBEC Circular.

Issue 2: Interpretation of CENVAT Credit Rules, 2004 regarding eligibility of CENVAT credit:
The appellant argued that Rule 2(l) of the CENVAT Credit Rules, 2004, allowed CENVAT credit for setting up premises for providing taxable goods or services. They claimed that the construction of a commercial complex for renting out fell under this provision. The appellant believed they had availed CENVAT credit in good faith. The Tribunal analyzed the definitions of "input" and "input service" to determine the eligibility of CENVAT credit for services used in construction activities. The Tribunal referred to case laws such as Navaratna S.G. Highway and Sai Samhita Storages to support the appellant's position.

Issue 3: Applicability of CBEC Circular No. 98/1/2008-ST:
The adjudicating authority relied on CBEC Circular No. 98/1/2008-ST to confirm the demands raised in the show-cause notice. However, the Tribunal disagreed with this reliance, stating that the Circular contradicted the provisions of the CENVAT Credit Rules, 2004. The Tribunal emphasized that the Circular's interpretation was incorrect and not in line with the legal framework governing CENVAT credit eligibility.

Issue 4: Comparison with relevant case laws and judicial precedents:
The Tribunal compared the present case with precedents like Navaratna S.G. Highway and Sai Samhita Storages to establish the eligibility of CENVAT credit for construction-related services. The Tribunal highlighted that similar issues had been addressed in those cases, where the higher judicial forums upheld the view that CENVAT credit was admissible for services used in construction activities. Based on the consistency of judicial decisions and the facts of the present case, the Tribunal set aside the impugned order and allowed the appeal with consequential relief.

This detailed analysis of the judgment addresses the issues raised, the arguments presented, and the Tribunal's reasoning in arriving at its decision.