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TMI Blog2012 (7) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... structure facility for retail malls which are given on lease and rental basis. During the year 2007-08, the appellant constructed a mall in Ahmedabad and during the construction of the mall they availed different services such as tours and travel agent service, security service etc., and took input service tax credit in respect of the services. In the year 2008-09, the appellant became liable to pay service tax under the category of renting of immovable property after the mall was opened on 9.10.2008. The service tax liability was discharged by utilizing the CENVAT credit taken by the appellant in respect of tours and travel agent services, security service, air ticket booking services, etc. However, appellant did not utilize the credit tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nefit. Further, he also relies on the decision of the Tribunal in the case of Lakshmi Vilas Bank Ltd. v. CCE [2010] 27 STT 145 (Chennai - CESTAT) and submits that in that case credit was allowed even in respect of construction of staff quarters. The learned AR on behalf of the Revenue relies on the Circular No.98/1/2008-S.T. dated 4.1.2008 and submits that it was clarified by the Board in this circular that the 'commercial or industrial construction service' or 'works contract service' is an input service for immovable property and immovable property is neither subjected to excise duty nor to service tax and therefore credit is not admissible. 3. We have considered the submissions made by both the sides. In this case, the appellant avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the service for the construction of the mall. Since mall is not an excisable product or is a service, credit is not admissible. As submitted by the learned counsel, the issue which was before the Hon'ble High Court of Andhra Pradesh was similar to the present one. The Hon'ble High Court of Andhra Pradesh considered the definition of the 'input' and 'input service' and took a view that using cement and TMT bars for construction of warehouse, the CENVAT credit on cement and TMT bars would be admissible. The Hon'ble High Court observed as follows: "6. The only allegation against the assessee is that they claimed CENVAT credit irregularly with reference to cement and TMT bars used in the construe lion of warehouses through which the storage an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all goods, except light diesel oil, high speed diesel oil, motor spirit; commonly known as petrol and motor vehicles, used for providing any output service; Explanation 1. - The light diesel oil, High speed diesel oil or motor spirit, commonly known as petrol, shall not be treated as an input for any purpose whatsoever. Explanation 2. - Input include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer; (I) "input service" means any service,- used by a provider of taxable service for providing an output service; or used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products up to the place of removal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the manufacture of final products whether directly or indirectly and whether contained in the final product or not. The crucial requirement, therefore, is that all goods "used in or in relation to the manufacture" of final products qualify as "input". This presupposes that the clement of "manufacture" must be present." 3.2 The definition of 'inputs' is limited to the definition of 'input services' as can be seen from the definition given above. Credit of duty paid on inputs is available when the inputs are used for providing an 'output service'. Therefore, there is a need to say that the inputs have been used for providing an 'output service'. In the case of 'input service', the definition includes input services used by a provider of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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