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TMI Blog2013 (9) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... contract service provider already stand availed by the appellant - if there was any doubt with regard to any benefit of CENVAT credit on the inputs for construction of building the fact that the appellant had engaged works contract service provider, who had availed the benefit of CENVAT credit by opting for payment of service tax at a lesser rate on the condition of non-availability of credit of duty paid on inputs used in construction of building, such benefit could not have been claimed by the appellant. By an amendment vide Notification dated 10.9.2004 CENVAT Credit Rules 2004 have been amended and by which the input credit on any goods used for construction of buildings, civil structures or parts had been excluded from the meaning "i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,08,08,286/- has been wrongly availed on input services and inputs and the CENVAT credit amounting to Rs.3,20,84,784/- has been wrongly utilized. The appellant had availed CENVAT credit on input services valued at Rs.2,28,01,762/- and CENVAT credit on inputs (Cement, Glass, Steel, Iron etc.) used for construction of buildings at Rs.1,80,06,524/-. 4. A reply was submitted to the show cause notice, denying the allegations and demand. By the Order-in-Original the respondent had disallowed CENVAT credit of Rs.4,08,08,286/- for the period from 2007-08 to 2010-11 availed by the appellant and ordered for recovery of the same under Rule 14 of CENVAT Credit Rules, 2004 and further confirmed the demand of service tax amounting to Rs.3,20,84,784/- u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch input services. He held that the owner of the property, who engages architect for preparing design of the building; and takes services of design engineer for preparation of design and contractor, is required to execute the work as per design of architect, design engineer and consulting engineer. Under CENVAT Credit Rules, credit can be taken by service recipient on the basis of invoices issued by the service provider. If invoices issued in respect of architect services, design service, consulting engineers service are in name of owner of property, prima facie there is no reason to deny the credit to the appellant. The 3rd Member agreed with the view of the Member (Technical) holding that 35% of CENVAT credit availed on input services is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e original authority as well as the appellate authority are clearly erroneous, which was correctly rectified by the CESTAT. In so far as the levy of penalty under Rule 15 (2) of the Rules is concerned, unless and until there is a finding that there was suppression of fact, and irregular claim of CENVAT credit, the question of levying penalty under Rule 15 (2) of the Rules does not arise. In that view of the matter, the order levying penalty was rightly set aside by the CESTAT." 10. In the present case, the CESTAT has distinguished the judgment of Andhra Pradesh High Court on the ground that the appellant is engaged in the business of construction of commercial malls and renting of space in other malls in the market. The mall was not const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts for 'Works Contract Service provider and on which he has already decided not to avail the credit as a condition of availment of lower payment of Service Tax. As such at this stage, we prima facie agree with the revenue that the input credit availed by the appellants is not in accordance with the law." 11. In so far as the judgment of Andhra Pradesh High Court is concerned, the Judicial Member, with which the Technical Member had agreed, held that the warehouse is constructed for providing storage and warehouse services and in which the cement and TMT bar are used for construction. The storage and warehouse services are separate services provided under Section 65 (102) of the Finance Act, and cannot be equated with the renting of immova ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment of the Andhra Pradesh High Court, the fact that the appellant had engaged works contract service provider, who had availed the benefit of CENVAT credit by opting for payment of service tax at a lesser rate on the condition of non-availability of credit of duty paid on inputs used in construction of building, such benefit could not have been claimed by the appellant. 14. We are informed that by an amendment vide Notification dated 10.9.2004 CENVAT Credit Rules 2004 have been amended and by which the input credit on any goods used for construction of buildings, civil structures or parts has been excluded from the meaning "input" under Rule 2 (k). 15. In view of the aforesaid we do not find any error in the orders passed by the CEST ..... X X X X Extracts X X X X X X X X Extracts X X X X
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