9911796707
TMI Blog2015 (11) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... input services, as the inputs and input services, in question, having been, used by the appellants contractors who constructed the malls, are not the inputs/input services for the appellants in respect of their output services. Notwithstanding the fact that the appellant have paid service tax on the amount of rent/lease charges received by them by renting/leasing of the space in the malls for commercial purposes, they would not be eligible for Cenvat credit of excise duty paid on various inputs and service tax paid on various input services used by their contractors in or in relation of construction of malls, as these inputs/input services are not the inputs/input services for the appellant in respect of the output services provided by them. - appellants would be eligible for Cenvat credit in respect of inputs, capital goods and input services used in or in relation to providing the CAM services. - these are not the cases for total unconditional waiver and conditions have to be imposed to safeguard the interests of the Revenue - Partial stay granted. - Appeal Nos. 55113-55115 of 2013 - Stay Order No. 51450-51452/2014 - Dated:- 24-4-2014 - Shri G. Raghuram, President and Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n various input services used in or in relation of the construction of malls. Besides this, in the case of M/s EWDPL, there is dispute about Cenvat credit of ₹ 54,53,290/- on the ground that in respect of this Cenvat credit, the original invoices are not available. In the case of NMCPL, there is also dispute regarding their liability to pay service tax amounting to ₹ 54,545/- on reverse charge basis in respect of GTA services received by them. 1.2 The Commissioner, Central Excise, Indore vide order-in-original No. 15/Commr/ST/IND/2012 dated 28/09/12 confirmed the Cenvat credit demand of ₹ 4,46,92,767/- against EWDPL under Section 14 of the Cenvat Credit Rules, 2004 alongwith interest thereon under Section 75 of the Finance Act, 1994 and beside this, imposed penalty of equal amount on them under Rule 15 of Cenvat Credit Rules, 2004 readwith Section 78 of the Finance Act, 1994. Similarly, the Commissioner vide order-in-original No. 13/Commr/ST/Ind/2012 dated 26/09/12 confirmed the Cenvat credit demand of ₹ 5,29,16,727/- and also service tax demand of ₹ 54,545/- against NMCPL alongwith interest thereon and beside this, imposed penalty of equal amount o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warehouses, the storage and warehousing service provider would be entitled for Cenvat credit of the excise duty paid on various inputs like cement, TMT bars, etc., that Tribunal in the case of M/s Vamona Developers Pvt. Ltd. vs. CC, CE ST, Pune III reported in 2014 - TIOL - 36 - CESTAT - MUM. has held that the assessee M/s Vamona Developers Pvt. Ltd. would be eligible for Cenvat credit of service tax paid on various input services used in or in relation to construction of malls, the space of which was rented out, as the various input services have to be treated as having been used for providing the output service of renting of immovable property on which service tax has been paid and the Tribunal in this case expressing this prima facie view, waived the requirement of pre-deposit of Cenvat credit demand, that same prima facie view has been taken by the Tribunal in the case of Aircel Ltd. vs. CCE, Coimbatore reported in 2014 - TIOL - 235 - CESTAT - MAD, wherein the Tribunal relied upon the judgment of Hon ble Andhra Pradesh High Court in the case of CCE, Visakhapatnam - II vs. Sai Sahmita Storages (P) Ltd. (supra), that the ratio of above judgments of the Tribunal and Hon ble An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... input services for construction of the malls, that it is those contractors only who would be eligible for Cenvat credit in respect of various inputs, capital goods and input services used by them in construction of malls and this Cenvat credit could be availed by them by paying service tax on the gross amount charged by them from the appellants for providing the construction services, that the appellants who are the recipient of construction service provided by the contractors are not at all eligible for the Cenvat credit of service tax paid on various input services and excise duty paid on various inputs and capital goods used by the contractors, that in this case, it is doubtful as to whether the contractors had paid service tax on the gross amount charged by them from the appellants, that if the contractors had paid service tax after availing 67% abatement or had paid service tax at compounded rate by treating the service provided by them to the appellants as works contract service under Section 65 (105) (zzzza), they would not even be eligible for any Cenvat credit whatsoever in respect of inputs, and, as such, in such a situation, there would be no question at all of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carefully considered the submissions from both the sides and perused the records. 6. The undisputed facts are that the appellants in these cases received the services of construction from the contractors. It is the contractors who have used various inputs like cement, construction steel, glass etc. and various input services which were used by them for providing the service of commercial or industrial construction (construction of malls) to the appellants. The appellants as recipient of the construction service by the contractors could take Cenvat credit of the service tax paid by the contractors as they had used the malls for providing the service of renting of immovable property which is taxable under Section 65 (105) (zzzz). However, the appellants would not be eligible for Cenvat credit of the excise duty paid on various inputs and service tax paid on various input services, as the inputs and input services, in question, having been, used by the appellants contractors who constructed the malls, are not the inputs/input services for the appellants in respect of their output services. In the case of CCE, Visakhapatnam - II vs. Sai Sahmita Storages (P) Ltd. (supra), the storag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi High Court in case of M/s DLF Ltd. Moreover in case of EWDPL, the period of dispute is from April 2005 to March 2011, while during period prior to 01/06/07, their main output service - renting of immovable property for furtherance of business or commerce was not taxable. 7. As regards the Cenvat credit in respect of the capital goods, like lifts etc. this question requires in-depth examination and the same can be examined only at the time of final hearing. However, the appellants would be eligible for Cenvat credit in respect of inputs, capital goods and input services used in or in relation to providing the CAM services. 8. As regards limitation, the same being a mixed question of facts and law can be examined only at the stage of final hearing and at this prima facie stage, nor final view can be expressed on the plea of time bar. 9. In view of the above discussion, we hold that these are not the cases for total unconditional waiver and conditions have to be imposed to safeguard the interests of the Revenue. We, therefore, taking into account the overall facts and circumstances of these cases, and also the fact that major disputed amount of Cenvat credit is of input ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
