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TMI Blog2018 (7) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... e Contract, the entire burden was on the Department to prove the same. Burden thereof cannot be shifted upon the appellant - The Adjudicating Authority is held to have miserably failed to appreciate the proper evidence on record. Not only this, they have also failed to properly interpret the provision of law. As a result, the Order under challenge is held to not to be sustainable. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. ST/51327/2018-ST[SM], Service Tax Appeal No. ST/51332/2018-ST[SM] - Final Order No. 52420-52421/2018 - Dated:- 5-7-2018 - HON BLE MRS. RACHNA GUPTA, MEMBER (JUDICIAL) For the Appellant : Mr. MB Maheswari, CA Present For the Respondent : Mr. P. Juneja, D.R. ORDER Per : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendering commercial coaching painted. It is submitted that the Department has wrongly denied the said expense as input, alleging it to be an expense for execution of Works Contract for Construction. It is impressed upon that getting premises painted amounts to maintenance which is out of the ambit of definition of construction. The Works Contract Service is excluded from the definition of Input only in case of construction but not in case of the maintenance. The Adjudicating Authority have failed to appreciate the same and have wrongly confirmed the demand. The Order under challenge is prayed to be set aside and Appeal is prayed to be allowed. Appellant has relied upon Sun Pharmaceuticals Industries Ltd. vs CCE, Surat-II (2016) 45 STR 340 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant was entitled to take the credit. For the purpose, the definition for input service is very much relevant which reads as follows: 1) Rule 2(K) of Cenvat Credit Rules, 2004 input service means (i) services provided or agreed to be provided by a person located in non taxable territory to a person located in non taxable territory by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India where service tax is paid by the manufacturer or the provider of output service being importer of goods as the person liable for paying service tax for the said taxable services and the said imported goods are his inputs or capital goods; or (ii) any service used by a prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or (BA) service of general insurance business, servicing, repair and maintenance, in so far as they relate to a motor vehicle which is not a capita goods, except when used by (a) a manufacturer of a motor vehicle in respect of a motor vehicle manufactured by such person; or (b) an insurance company in respect of a motor vehicle insured or reinsured by such person; or (B) such as those provided in relation to outdoor catering, beauty treatment, health services, cosmetic and plastic surgery, membership of a club, health and fitness centre, life insurance, health insurance and travel benefits extended to employees on vacation such as leave or home travel concession, when such services are used primarily for personal use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outer and inner boundary as well as the building housing such class rooms. This perusal makes it clear that appellant was simply maintaining the premises where he was rendering commercial coaching service for which he is duly registered and is discharging his liability. The same is nowhere been denied and disputed. As discussed above, maintenance is different from the construction and is very much inclusive of the definition of input service, I am of the firm opinion that the appellant has rightly considered the same as input service and has rightly availed the credit thereof. The Adjudicating Authority is held to have miserably failed to appreciate the proper evidence on record. Not only this, they have also failed to properly interpret th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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