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TMI Blog2018 (6) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... orks contract is admissible for payment of service tax on output service i.e. renting of immovable property service as building constructed was rented out to various parties. 2. Shri. Sachin Chitnis, Ld. Counsel for the appellant submits that absolutely identical issue in the appellant s own case has been decided by this Tribunal reported as Nirlon Ltd vs 2016-TIOL-1571-CESTAT-MUM. He further submits that on the similar issue, this Tribunal has consistently held in various judgments in favour of the assessee. One of such judgments in the case of Sai Samhita Storages P. Ltd. vs. CC CE, Visakhapatnam-II 2010 (255) ELT 91 (Tri.-Bang.) has been upheld by the Hon ble Andhra Pradesh High Court as reported in 2011 (270) ELT 33 (AP). He placed reliance on the following judgments (i) Navaratna SG Highway 2012 (28) STR 166 (T); (ii) Maharashtra Cricket Association 2015-TIOL-2418- CESTAT-MUM; (iii) Vamona Developers 2015-TIOL-2705-CESTAT-MUM; (iv) Essar Telecom 2015 (40) STR 591 (T); (v) Reliance Infratel 2015 (38) STR 984 (T); (vi) GTL Infrastructure 2015 (37) STR 577 (T); (vii) Mundra Ports 2015 (39) STR 726 (Guj.); (viii) Var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s input services. The issue that falls for consideration is whether during the period in question i.e. April 2007 to March, 09, the appellant had correctly availed the CENVAT credit of the service tax paid by the service providers under various categories related to construction of commercial complex or otherwise. The adjudicating authority has relied upon the Board's Circular No. 98/1/2008-ST to confirm the demands raised by the show-cause notice. 6.1 We are not in agreement with the findings recorded by the adjudicating authority for more than one reason. (a) Firstly, it is not disputed that appellant had discharged appropriate service tax liability under the category of Renting of Immovable Property'. In our considered view the service tax liability on renting of immovable property will not arise unless the immovable property comes into an existence, such immovable property will be in the nature of constructed building/warehouse. In the case in hand, appellant had constructed a commercial complex and rented out the premises to various entities. (b) Secondly, unless the commercial complex is constructed and completed in all respects, the same could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CENVAT credit in relation to input service. Rule 2(K) and (1) of the Rules are relevant and they read as under. 2. Definitions.- (k) input means- all goods, except light diesel oil high speed diesel oil and motor spirit, commonly known as petrol used in or in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not and includes lubricating oils, greases, cutting oils, coolants, accessories of the final products cleared along with the final product, goods used as paint, or as packing material, or as fuel, or for generation of electricity or steam used in or in relation to manufacture of final products or for any other purpose, within the factory of production; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 this case also, without utilizing the service, mall could not have been constructed and therefore the renting of immovable property would not have been possible. The issue involved is squarely covered by the decision of the Hon'ble High Court of Andhra Pradesh. Since the service tax demand itself is not sustainable, the question of imposition of penalty does not arise. The appeal is allowed with consequential relief to the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X
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