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TMI Blog2015 (11) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... lar appears to have travelled absolutely contrary to the clear and plain language of the definition of the input service. It is very pertinent that legislators knowing fully that there is no tax or excise duty on the constructing premises of the output service provider, included services used for setting up of the premises of provider of output services, for the simple reason that if the premises are used for providing the output service, the credit of input services used for setting up the premises of service provider must be allowed. - appellant has clearly entitled for Cenvat Credit in respect of all the services used for construction/setting up the stadium which is admittedly used for providing the output services. - Impugned order is set aside - Decided in favour of assessee. - Appeal No. ST/83/12-Mum - Final Order No. A/3556/2015-WZB/STB - Dated:- 29-10-2015 - P S Pruthi, Member (T) And Ramesh Nair, Member (J) For the Appellant : Ms Aparna Hirandagi, Adv For the Respondent : Shri A K Goswami, AC, (AR) ORDER Per Ramesh Nair This appeal is directed against Order-in-Original No. 25/P-III/ST/COMMR/2011-12 dtd. 30/11/2011 passed by the Commissioner of Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 75 and penalty under Sec. 78 were also proposed to be imposed/demanded. In the adjudication, the Ld. Commissioner confirmed the demand as proposed in the show cause notice and also demanded the interest, however no penalty was imposed. Aggrieved by the impugned order, the appellant filed the present appeal. 4. Ms. Aparna Hirandagi, Ld. Counsel for the appellant submits that the show cause notice as well as confirmation of the demand was made only on the basis of Board Circular No. 98/01/2008-ST dated 04.01.2008. She submits that the said Board Circular is completely contrary to the definition of 'Input Services' provided under Rule 2(l) of Cenvat Credit Rules, 2004. She further submits that period involved in the present case is 2008-09. As per the definition of input service, prevailing at the relevant time as provided under Rule 2(l) of Cenvat Credit Rules, 2004, services use in relation to setting up the premises of provider of output service is specifically included in the definition of input service. In the present case, Cenvat Credit availed in respect of services such as Architect Services, Consulting Engineers Services, Management Consultancy Services etc. used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Services etc. used for construction of sports stadium are admissible input services for taking Cenvat Credit as against the output service of the appellant i.e. renting of the said stadium and other services on which services, service tax was discharged. Whether the service is input service or otherwise, it can be ascertained only on the basis of definition of 'input service' as provider under Rule 2(l) of Cenvat Credit Rules, 2004, which is reproduced below: Input Services- As per Rule 2(l) of Cenvat Credit Rules, 2004, (prior to 1.4.2011) 'input service' means any service, i) used by a provider of taxable service for providing an output service ; or (ii) used by a manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal]1n, and includes services used in relation to setting up, modernisation, renovation or repairs of a factory, premises of provider 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of Ahmadabad Tribunal in the identical case allowed the Cenvat Credit on the input services used for construction of immovable property which in turn used for renting and other services. The operative para is reproduced below:- 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 taxable service for providing an output service. Therefore the definition of input and input service are pari materia as far as the service providers are concerned. That being the position, the decision of the Hon'ble High Court of Andhra Pradesh would be applicable to the present case. In that case also, the Hon'ble High Court took the view that without use of cement and TMT bars for construction of warehouse assessee could not have provided 'storage and warehousing service'. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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