2022 (12) TMI 139 - HC - Service Tax

CENVAT Credit - input services or not - construction of immovable properties - works contract services - Section 2(1)(ii) of the Cenvat Credit Rules, 2004 - HELD THAT - An identical issue stands dealt with by a Division Bench of this Court in COMMISSIONER CENTRAL EXCISE COMMISSIONERATE, DELHI-III VERSUS M/S BELLSONICA AUTO COMPONENTS INDIA P. LTD. 2015 (7) TMI 930 - PUNJAB HARYANA HIGH COURT - In the aforesaid case the assessee had availed Cenvat credit for service tax paid on civil work of constructing a plant/factory in the premises, namely, the manufacturing plant and for rental of the immovable property leased by it on which the plant was erected. The dictum laid down in Bellsonica Auto Components India P. Ltd. would squarely apply in the facts of the present case as well. There are no patent infirmity in the findings returned by the Tribunal - appeal dismissed.

Summary

Issues:
1. Whether Cenvat Credit could be availed on inputs, input services, and capital goods used for construction of immovable properties?
2. Whether commercial or industrial construction service or works contract service used for construction of an immovable property could be treated as input service for the output service namely renting of immovable property service under the CENVAT Credit Rules, 2004?
3. Whether the assessee is entitled to avail Cenvat Credit on inputs, capital goods, or input services used for providing output services namely renting of immovable property service?

Analysis:

Issue 1:
The appeal challenged the order of the Customs, Excise and Service Tax Appellate Tribunal denying Cenvat Credit availed on inputs, input services, and capital goods used for providing renting of immovable property services. The appellant argued that the services used for erecting or maintaining immovable property for renting services did not qualify as inputs under the Cenvat Credit Rules, 2004. The Court referred to a previous case where a similar issue was addressed and held that the services used in setting up a factory, including civil work, fell under the definition of "input service." The Court agreed with the respondent's argument that the services directly or indirectly related to the manufacture of the final product were eligible for Cenvat Credit.

Issue 2:
The Commissioner had declined Cenvat credit for services related to renting of immovable property, stating that immovable property is neither goods nor services, hence not eligible for input credit. The Court disagreed with this view, emphasizing that the services used in setting up a factory, including leasing land for construction, were integral to the manufacturing process and fell within the definition of "input service." The Court highlighted that the inclusive definition of "input service" covered services used in setting up a factory, supporting the respondent's claim for Cenvat Credit.

Issue 3:
The Court examined the amendments to the Cenvat Credit Rules, specifically excluding construction services from the definition of "input service." However, the Court noted that the amendment was not retrospective and did not apply to the respondent's case. The Court relied on a previous case to assert that services related to setting up a factory were eligible for Cenvat Credit. The Court also noted that the department had accepted the decision in the previous case, further supporting the respondent's position. Consequently, the Court found no error in the Tribunal's decision and ruled in favor of the respondent, dismissing the appeal.