2019 (3) TMI 40 - AT - Service Tax

CENVAT Credit - input services or not - having nexus with output service or not? - purchase of flat for office purpose - It appeared to the appellant that as they are using the premises for business purposes, they availed credit of service tax paid to the builder towards construction of flat/office premises - penalty - Held that - The said construction service availed by the appellant towards construction of the flat/office premises is not relatable to the output service, they are providing - Appellant are not entitled to the said cenvat credit of ₹ 51,319/-. Penalty u/s 78 of FA - Held that - The matter is of interpretation of the statute and there is no suppression of facts or malafide on the part of the appellant - penalty u/s 78 not warranted. Appeal allowed in part.

Summary

Issues:
1. Whether the appellant rightly took cenvat credit on the purchase of a flat for office purpose.
2. Validity of demanding cenvat credit availed along with interest and penalty.
3. Interpretation of the statute regarding eligibility for cenvat credit on construction services.
4. Invocation of the extended period of limitation for demanding cenvat credit.

Analysis:
1. The primary issue in this appeal was whether the appellant correctly claimed cenvat credit amounting to ?51,319 on the purchase of a flat for office use, for which service tax was charged by the builders. The appellant, engaged in providing various services, believed they were entitled to the credit as the premises were used for business purposes. The credit was taken and disclosed in their accounts and returns. However, an audit objection led to a demand notice for recovery of the credit along with penalties.

2. The demand for cenvat credit was initially upheld by the adjudicating authority and later by the Commissioner (Appeals) who noted that construction services were excluded from eligible services for cenvat credit. The Commissioner confirmed the penalty at 50%. The appellant argued that since the service tax was incurred for the construction of office premises used for providing output services, they should be entitled to the credit. The appellant also contested the invocation of the extended period for demanding the credit.

3. Upon evaluating the arguments, the tribunal found that the construction service availed by the appellant for the flat/office premises was not directly linked to the output services they provided. Consequently, the tribunal held that the appellant was not entitled to the cenvat credit of ?51,319. However, recognizing that the issue was a matter of statutory interpretation and not due to any deliberate concealment of facts by the appellant, the tribunal set aside the penalty under Section 78, showing leniency towards the appellant.

4. In conclusion, the tribunal allowed the appeal in part by disallowing the cenvat credit but providing relief by cancelling the penalty. The judgment highlighted the importance of the nexus between input services and output services for claiming cenvat credit and emphasized the absence of malafide intentions on the part of the appellant in this case.