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TMI Blog2023 (5) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... on, erection commissioning or installation and works contract service, the appellant availed CENVAT credit of service tax paid on works contract service prior to 01.04.2011 as the services were used for construction of buildings specifically given on rent, but the appellant, in view of the amendment made in rule 2(l) of the 2004 rules on 01.04.2022, did not avail CENVAT credit as these are services covered under the inclusive clause. The Commissioner has placed reliance upon a Larger Bench decision of the Tribunal in VANDANA GLOBAL LTD. VERSUS CCE [ 2010 (4) TMI 133 - CESTAT, NEW DELHI (LB) ], which decision has been set aside by the Chhattisgarh High Court and the decision of the Larger Bench of the Tribunal. The order dated 20.06.2017 passed by the Commissioner deserves to be set aside and is set aside and the appeal is allowed. - Service Tax Appeal No. 51789 of 2017 - FINAL ORDER NO. 50642/2023 - Dated:- 9-5-2023 - MR. DILIP GUPTA, PRESIDENT AND MS. HEMAMBIKA R PRIYA, MEMBER (TECHNICAL) Shri B.L. Narasimhan Shri Kunal Agarwal, Advocate for the Appellant Shri Rajeev Kapoor, Authorized Representative of the Department ORDER M/s Bharti Reality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal was allowed on 09.05.2022 by a Division Bench of the Tribunal in M/s Bharti Reality Limited Vs. Commissioner of Service Tax, Delhi III [2022 (5) 569-CESTAT, New Delhi]. 7. The submission advanced by Shri. B.L. Narasimhan, learned counsel for the appellant assisted by Shri Kunal Agarwal is that the order dated 20.06.2017 passed by the Commissioner should be set aside for the reasons enumerated in the aforesaid order dated 09.05.2022 passed by the Tribunal in the appellant s own case for the earlier period. 8. Shri Rajeev Kapoor, learned authorized representative appearing for the department has, however, supported the impugned order and has contended that it does not call for any interference in this appeal. 9. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the department have been considered. 10. The appellant has used various input services like (i) management or business consultant, (ii) interior decorator s services, (iii) real estate agent services, (iv) consulting engineering, (v) business support services (vi) advertising agency services (vii) business exhibition services (viii) s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tached to the earth does not dilute the fact that it is being used for providing a taxable service. 12. We find that this issue was addressed by various High Courts. In Commissioner of Central Excise, Visakhapatnam vs. Sai Samhita Pvt. Ltd. [ 2011 (23) STR 341 (AP)], the High Court of Andhra Pradesh has decided that CENVAT credit is admissible on cement and TMT bars for construction of warehouses by M/s Sai Samhita who were providing storage and warehousing services. 13. The judgment of the Andhra Pradesh High Court in Sai Samhita was referred to by the Gujarat High Court in Mudra Port and CENVAT credit was allowed on the inputs used for construction of jetty. 14. In Vandana Global Limited, the High Court of Chhattisgarh disposed of the bunch of appeals reversing the order of the Larger Bench of this Tribunal. The question framed by the Chhattisgarh High Court were as follows: 4. In the light of the contents of the impugned order of the Tribunal and submissions of the Assessee and the Revenue following substantial questions of law are formulated for consideration: (A) Whether the terms capital goods excluded the structures embedded in earth? (B) Whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. In view of the aforesaid decision of the Tribunal, the appellant would be eligible to avail CENVAT credit on input services used for provision of renting services. 14. Learned counsel for the appellant has, however, pointed out a relevant fact which has not been taken note of either in the show cause notice or in the impugned order passed by the Commissioner. This concerns the amendment made on 01.04.2011 in rule 2(l) of the 2004 Rules, which rule defines input service . 15. Prior to 01.04.2011, rule 2(l) of the 2004 Rules read as follows:- 2(l) 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 upto the place of removal, procurement of inputs, activities relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p 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 or consumption of any employee; 17. Learned counsel for the appellant pointed out that for commercial or industrial consideration, erection commissioning or installation and works contract service, the appellant availed CENVAT credit of service tax paid on works contract service prior to 01.04.2011 as the services were used for construction of buildings specifically given on rent, but the appellant, in view of the amendment made in rule 2(l) of the 2004 rules on 01.04.2022, did not avail CENVAT credit as these are services covered under the inclusive clause. 18. The Commissioner has placed reliance upon a Larger Bench decision of the Tribunal in Vandana Global Vs. Commissioner of Central Excise and Customs, Raipur (Chhattisgarh) [2010 (253) ELT 440 (Tri.-LB)], which decision has been set aside by the Chhattisgarh High Court and the decision of the Larger Bench of the Tribunal. This is clear from paragraph 14 of the decision of the Tribunal in the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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