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TMI Blog2011 (2) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... 44, vide order-in-original No. 85/SSS/CE/2009 dated 31/12/09 passed by CCE, Delhi - III and also for stay on recovery thereof till the disposal of the appeal. The appellant are engaged in the manufacture of motorcycles and parts thereof, chargeable to Central Excise Duty and they also availed the Cenvat credit of the duty paid on inputs and capital goods and of the service tax paid on input services under the Cenvat Credit Rules, 2004. During 2004-2005 to 2007-2008 period, they had availed the construction service from contractors on which service tax had been paid and on the basis of the invoices issued by the providers of commercial construction service, they had taken service tax credit amounting to Rs.1,15,81,957, The construction servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal alongwith stay application have been filed. 2. Heard both the sides. 2.1. Shri S.R. Tandon, Advocate, the learned Counsel for the appellant, pleaded that the definition of 'input service' as given in Rule 2 (1) of the Cenvat Credit Rules, 2004 covers the services used in or in relation to the setting up, modernization, renovation or repairs of a factory premises of provider of output service or an office relating to such factory or premises, that from the provisions of Rule 6 (5) of Cenvat Credit Rules, 2004, which provides that notwithstanding anything contained in sub-Rules (1), (2), (3) of Rules 6, credit of whole of the Service Tax paid on the services as specified in Clauses (g), (p), (q), (r), (v), (w), (za), (zm), (zb), (zy) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come into existence is an immovable property on which no excise duty is chargeable, the service tax credit in respect of this service would not be available. The learned Departmental Representative also relied upon the Board's Circular No. 98/1/08-ST dated 4th January 2008, wherein it has been clarified that commercial or industrial construction service or works contract service is an input service for the output service namely immovable property, that immovable property is neither subjected to Central Excise Duty nor to Service Tax, that under Cenvat Credit Rules, 2004 input credit of service tax can be taken only if the output service is taxable or the goods are liable to excise duty and that since immovable property is neither service no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security, inward transportation of inputs or capital goods and outward transportation upto the place of removal". 4.1. From the above definition of 'input service', it is clear that the services used in or in relation to the setting up, modernization, renovation or repairs of a factory or premises of output service provider or an office relating to such factory or premises, are cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in sub-Rule (5) of Rule 6 would not be admissible, even though the services are covered by the definition of 'input service'. The Board's Circular dated 4th January 2008 is applicable in the context of availing of commercial or Industrial Complex construction service for construction of commercial or industrial complexes, which are to be rented. But this Circular does not appear to be applicable in this case, as the industrial or commercial construction service is an integral part of the services required for setting up of the factory and the same is covered by the definition of 'input service'. We find that the same view had been taken by Advance Ruling Authority in the case of VMT Spinning Company Ltd. reported in 2008 (12) S.T.R. 388 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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