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TMI Blog2019 (4) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... issue regarding the availability of Cenvat credit in construction of Mall on inputs, capital goods and input services and capital goods used for construction of shopping mall and payment of service tax on the various services rendered by the mall after been operationalised, using these credit lying in balance. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 55113 of 2013-DB, 55115 of 2013-DB, 50852 of 2015-DB - Final Order No.50536-50538/2019 - Dated:- 16-4-2019 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) And MR. BIJAY KUMAR, MEMBER (TECHNICAL) Shri Sumit Nema, Sr. Advocate, Shri Harsh Prashar, Advocate, Shri Naveen Khandelwar, CA And Shri Aman Pandey, Advocate - for the appellant Shri Amresh Jain, DR - for the respondent ORDER Per Bijay Kumar : All these appeals are based on same sets of facts and issues involved are identical, those were heard together and are being disposed of by this common order. 2. The appellants are in the business of setting up and managing shopping centres, family entertainment centres, Malls etc. The appellants in all these cases got the shopping malls constructed by using the services of contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 14 of the Cenvat Credit Rules, 2004 (for short Credit Rules) along with interest under Section 75 of the Finance Act, 1994 (for short, Finance Act) and besides this, imposed penalty of equal amount on them under Rule 15 of Credit Rules read with Section 78 of Finance Act. Similarly, the Commissioner vide Order-in-Original No. 14/Comr./ST/Indore/2012 dated 27.9.2012 in respect of NTBPL confirmed Cenvat credit demand of ₹ 2,92,86,878/- along with interest and besides this, also imposed penalty the appellant equal to amount on them under Rule 15(1) of Cenvat Credit Rules. Similarly in case of UTBPL, the Commissioner confirmed the demand vide Order-in-Original No. 15/Commr/ST/Indore/2013 dated 18.12.2014 confirmed the demand of ₹ 2,70,58,260/- under the provisions of Rule 14 of Credit Rules along with applicable interest. Besides this an equal amount of penalty was also imposed under Rule 15(3) of the Credit Rules. Further, service tax amount of ₹ 71,41,476/- was also ordered to be recovered with interest along with penalty of equal amount. Against the above three orders of Commissioner three separate appeals have been filed by the appellant. 3. Learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011 whereby the goods used in the construction of building or civil structure were specifically excluded. But in these cases, it is the submission of the learned Advocate, that the same pertained to the period prior to 1.4.2011 and, therefore, they are eligible for Cenvat credit. In support, learned Advocate has relied upon the following decisions of Hon ble High Court/CESTAT: (i) Commissioner of Central Excise Vs. Sai Sahmita Storages (P) Ltd. [2012] 17 taxmann.com 107 (AP); (ii) M/s Navaratna S.G. Highway Prop. Pvt. Ltd Vs. The Commissioner of Service Tax (CESTAT-Ahmedabad) in appeal No. ST/568/10 (2011-TIOL-1703-CESTAT-Ahm); (iii) Nirlon Ltd. Vs. Commissioner of Central Excise, Mumbai (CESTAT-Mumbai) (2016) TIOL-1571-CESTAT-MUM; (iv) Oberoi Mall Vs. Commissioner of Service Tax, Mumbai-II (CESTAT-Mumbai) - (2016)-TIOL-704-CESTAT-MUM; (v) Alpha Corp. Development Pvt. Ltd. Vs. Commissioner of Service Tax, Delhi (CESTAT-Delhi) (2018)-TIOL-20165; (vi) M/s Ruchi Malls Pvt. Ltd. Vs. Commissioner of Central Excise, Delhi-I (CESTAT-Delhi) 2018-TIOL-1991; (vii) M/s Navin Fluorine International Ltd. Vs. Commissioner of Central Excise, Indore (CESTAT-Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng with details of challans of pre-deposit amount. Similarly, vide copy of letter dated 2.11.2016 addressed to Assistant Commissioner, Service Tax Division, CGO Complex, Indore and reply thereon by the Supdt. of CGST CE dated 5.1.2018, was placed on record to that effect directed the concerned Commissioner to refund the pre-deposit amount to M/s ITIPL. 4.3 Further, learned AR on behalf of the appellant submits that the appellants did not provide the output service themselves but got the mall constructed engaging other contractors and thus the inputs (cement, angles, channels, CTD bars etc.), input services (architect etc.) and capital goods were having nexus with the construction services provided by different service provider and by the appellants. In these cases, the appellant have availed the credit of inputs, input service and capital goods during the period 2005-2006 to 30.6.2012. 4.4 Appellants were not registered under the category of construction services during that period. It was also submitted that even if they got registered during the later period they have not declared in output service of construction in their ST-3 returns and have not discharged any servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein it is held that telecommunication tower constitute immovable property as against Delhi High Court decision in the case of Vodafone Mobile Services Ltd. In the case of BSNL (supra), it has been held by the Andhra Pradesh High Court that telecommunication tower are embedded to the earth or rooftop of a building and fastening of such huge structures was necessitated and thus excluded from ambit of goods and constitute immovable property. It was also placing reliance on the decision of Bombay High Court and Andhra Pradesh High Court that the telecommunication towers are movable property and only Delhi High Court in the case of Indus Towers Ltd. Vs. CST - 2018-TIOL-HC-DEL-ST have said that towers are immovable property. Accordingly, it was argued that buildings are immovable property and therefore, Cenvat credit is not available to the appellant on account of these being immovable property which are being created before the provisions of services after coming into existence. 5.3 Learned AR submitted a written submission which is also considered. 6. We have considered the rival submission and perused the case record. 7. The issue to be decided in these cases is as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch subsequently is put into use for rendering taxable output services. We find that the adjudicating authority was in error to rely upon the Board Circular No.98/1/2008-ST dated 04/01/2008 in as much, the definition of input services during the relevant period does not bar availment of Cenvat Credit all input services. In order to appreciate correct position of law, the definition of input services under Rule 2 (1) of the Cenvat Credit Rules, 2004 as was during the relevant period of these cases is reproduced: Input service means any service, - (i) Used by a provider of taxable service for providing an output service; or (ii) Used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal, and includes services used in relation to setting up, modernization, 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 up to the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned, 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. These two appeals, for the above reasons are, accordingly, dismissed. No costs. 7.3 We also find that the reliance placed by learned AR in the case of M/s Bharti Airtel, BSNL, Vodaphone Mobile is misplaced as the same is not directly related the issue at hand. In all these the issue was regarding the immovability/movabiltity of transmission towers which was in different context all together. However, we find that the reliance placed on the various decisions by learned Advocate on behalf of the appellant, are directly on the issue regarding the availability of Cenvat credit in construction of Mall on inputs, capital goods and input services and capital goods used for construction of shopping mall and payment of service tax on the various services rendered by the mall after been operationalised, using these credit lying in balance. 8. In view of above we set aside the impugned order and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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