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TMI Blog2023 (8) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... e stand that if period beyond 07.07.2009 till the subsequent amendment made on 01.04.2011 is to be taken as the period on which credit is also inadmissible, then only about Rs.7 lakhs some odd amount of credits were availed by the Appellant after 07.07.2009. Department placed its reliance solely on the judgment of Larger Bench of this Tribunal passed in the case of Vandana Global [ 2008 (6) TMI 400 - CESTAT, NEW DELHI] wherein it was held that Explanation-II to Rule 2(k) of CENVAT Credit Rules, 2004 inserted vide Notification No. 16/2009-CE was clarificatory in nature and hence it has retrospective application w.e.f. 2004 but the same judgment has been overruled by the Hon'ble High Court of Chhattisgarh in [ 2018 (5) TMI 305 - CHHATTISGARH, HIGH COURT] . This being the position of law, going by the submissions of learned Counsel on the facts of the case, out of total credit of Rs.1,12,91,950/- availed on cement and steel, credit to the extent of Rs.1,07,33,533/- being availed prior to 07.07.2009 were clearly admissible credits. Disputed credit that taken after 07.07.2009 - HELD THAT:- It is required to be mentioned here that in placing reliance on the judgment on the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal allowed. - HON BLE DR. SUVENDU KUMAR PATI , MEMBER ( JUDICIAL ) And HON BLE MR. ANIL G. SHAKKARWAR , MEMBER ( TECHNICAL ) Shri Vishal Agarwal , Advocate with Shri Ramnath Prabhu , Advocate and Shri Rishabh Chandak , Advocate for the Appellant Dr. Badhe Piyush Barasu , Dy. Commissioner , Authorised Representative for the Respondent ORDER PER: DR. SUVENDU KUMAR PATI Order for recovery of certain CENVAT Credits of Rs.2,24,25,358/- in total availed on input and inputs services allegedly held to be inadmissible and also confirmation of Service Tax demand of Rs.53,31,866/- raised towards providing service of renting of immovable property alongwith interest and penalties under various Sections of Finance Act is assailed in this appeal. 2. Fact of the case, in a nutshell, is that Appellant M/s. Crescent Entertainment Tourism Ltd. developed a shopping complex called Khandesh Central. It had rented out part of its premises having space for shops etc. to business conductors like Big Bazar, Adidas, Liliput, Provogue etc. It has got service tax registration under Nashik Commissionerate for Business Support Service and Transport of Goods by Road S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty, for which it has approach this Tribunal for necessary relief. 3. During course of hearing of the appeal, learned Counsel for the Appellant Mr. Vishal Agarwal submitted that credit on inputs services and capital goods including credit on steel, cement, construction services etc. were all availed prior to 01.04.2011 since the construction of Mall had commenced in 2008 and completed by 2010-11 financial year, but applying the definition of input introduced in Rule 2(k) of the CENVAT Credit Rules, 2004 w.e.f. 01.04.2011, duty demands were confirmed by the Adjudicating Authority. On the basis of the ratio of judgment of this Tribunal in Vandana Global case, in which finding was given to the effect that the amendment was clarificatory having retrospective application that was overruled by the Hon'ble High Court of Chhattisgarh as reported in 2018 (16) GSTL 462 (Chhattisgarh), he further submitted that relying on the explanation-II inserted to the definition of input vide Notification No. 16/2009 on dated 07.07.2009, though not specifically invoked in the show-cause notice that excludes goods used in the manufacture of capital goods for further use in the factory like cemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abilities for the period from 2010 to 2013 on the basis of agreed amount and thereafter, its started billing the business conductors on the basis of agreed percentage on net sales that remained lesser than the agreed upon rental amount, but on that score, duty demand, based on the reason that no addendum/revised rental agreement was entered between the parties, was unsustainable. On rejection of credits for the period post October, 2010 on the ground that most of the invoices were addressed to the registered office of Appellant at Mumbai and not to the Mall at Jalgaon Unit, placing reliance on the judgment of Hon'ble High Court of Gujarat passed in the case of CCE Vs. Dashion Ltd. reported in 2016 (41) STR 884 (Guj.) that has been accepted by the CBEC vide its Circular No. 1063/2/2018-CX, he argued that its a procedural infraction and curable irregularity for which CENVAT Credit cannot be denied only on the ground that invoices issued in the address of registered office had not registered it as IST and, therefore, the order passed by the Commissioner is liable to be set aside. 5. In response to such submissions, learned Authorised Representative for the Respondent-Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andana Global wherein it was held that Explanation-II to Rule 2(k) of CENVAT Credit Rules, 2004 inserted vide Notification No. 16/2009-CE was clarificatory in nature and hence it has retrospective application w.e.f. 2004 but the same judgment has been overruled by the Hon'ble High Court of Chhattisgarh in 2018. Needless to mention here that having regard to the precedent value of both the decisions, coupled with direction content in the judgment of the Larger Bench of the Tribunal in the case of Mira Silk Mills Vs. Commissioner of Central Excise, Mumbai reported in 2003 (153) ELT 686 (Tri. - LB) wherein it had been held that in such a scenario the judgment of the Hon'ble High Court is to be followed, we are of the considered opinion that CENVAT Credits on those inputs like cement, steel etc. were admissible to the Appellant since no Rule was in existence then to deny its admissibility. This being the position of law, going by the submissions of learned Counsel on the facts of the case, out of total credit of Rs.1,12,91,950/- availed on cement and steel, credit to the extent of Rs.1,07,33,533/- being availed prior to 07.07.2009 were clearly admissible credits. Now coming to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... precedent for availment of CENVAT Credit on inputs services post October, 2010. The reason cited in the Order-in-Original that addresses mentioned in the invoices were different is unsustainable in law unless it is established that the services were not actually availed by the assessee on which credits were taken by it. 8. Now coming to the demand of Service Tax on the basis of the value shown in the lease rental agreement documents, there is no denying of the fact that no subsequent change of the terms and conditions of the agreement were made in respect of those documents by way of addendum or amendment of those agreement and admittedly lesser amount on the basis of sale turnover was taken to be the rent of the property in respect of most of the tenants, though agreements indicate that higher amount was to be billed and collected by the Appellant but this cannot form the basis to make a duty demand since invoice value, which is consistent with the collection of rent value, would determine the taxability irrespective of the fact that it is inconsistent with the agreed upon terms. To put it differently, any agreement can be breached by either of the parties against which civil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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