2018 (4) TMI 70 - AT - Service Tax

Short payment of service tax - Held that - there is no actual Service Tax which was short paid - learned Counsel have also taken us through the returns for the relevant period and have reconciled the figures with reference to the SCN and it is found that there is no Service Tax short paid. CENVAT credit - input services - credit taken since 2006 - Held that - the issue of input credit in the facts and circumstances are squarely covered by the ruling of this Tribunal in the case of Oberoi Mall Ltd. Versus 57199/13 Commissioner of Service Tax Mumbai-Il 2016 (3) TMI 854 - CESTAT MUMBAI where it was held that the appellant can avail the Cenvat Credit of input service of construction services and other services - credit allowed. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Short payment of Service Tax
2. Allowability of Cenvat credit on certain inputs

Short payment of Service Tax:
The appellant-assessee appealed against the Order-in-Original demanding short paid Service Tax and disallowing input service credit. The Tribunal reviewed stay orders granted by the High Court and Supreme Court to M/S Lifestyle International Pvt. Ltd., a tenant of the appellant, regarding liability for Service Tax on renting immovable property. The appellant's counsel argued that the tenant had complied with the Supreme Court's order by depositing 50% of the disputed tax. The Tribunal found merit in the appellant's argument, stating that there was no actual short payment of Service Tax. The appellant reconciled figures from returns for the relevant period, showing no Service Tax was short paid.

Allowability of Cenvat credit on certain inputs:
The Show Cause Notice alleged that the appellant had taken Cenvat credit on various services since 2006, disallowed by the Commissioner citing a Tribunal ruling and a CBEC Circular. The appellant's counsel referenced a Co-ordinate Bench ruling stating that registration is not a condition precedent for claiming Cenvat credit, emphasizing the need to show inputs were used for providing an output service. The counsel argued that without utilizing the services, the mall construction and subsequent renting of immovable property service would not have been possible. The Tribunal agreed with the appellant, citing relevant case law and overturning the Commissioner's decision. The appeal was allowed on both issues, setting aside the impugned order and granting the appellant consequential benefits as per the law.