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TMI Blog2023 (11) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... and K. Raheja - Similar view was also taken by Hon ble Andhra Pradesh High court in COMMR. OF C. EX., VISAKHAPATNAM-II VERSUS SAI SAHMITA STORAGES (P) LTD. [ 2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT] and by Division Bench of this Tribunal in OBEROI MALL LTD. VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI -II [ 2016 (3) TMI 854 - CESTAT MUMBAI] . Accordingly the Appellant is entitled to the Cenvat Credit on receipt of input services under dispute. Levy of service tax on reimbursement of electricity and water charges - HELD THAT:- This very Bench have held that no service tax is chargeable on the amount of recovery of water and electric charges on actual basis, in the appeals of L T Infocity and K. Raheja. Similar view was also taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have availed Cenvat Credit of construction services received. The Appellant have let out various units in the said multistorey buildings/office complex to various tenants. The Appellant is paying service tax under the category of renting of immovable property service. The Appellant is also paying service tax under the maintenance or repair service on the amount of maintenance recovered from the tenants. The Appellant also recovers reimbursement of electricity and water charges from the tenants on actual basis. On this amount of reimbursement the Appellant was not paying service tax. 3. On objection by Revenue with regard to Cenvat Credit taken on the construction services, the Appellant reversed an amount of ₹ 8,95,58,018/- and inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax on electricity water charges totalling ₹ 2,06,58,119/- was also confirmed. Further equal amount of penalty was imposed under Section 78 read with Rule 15 of CCR for both the demands. Penalty was also imposed under Section 76 of the Act that the rate of 200 per day or 2% of tax per month, which is higher subject to the maximum amount of tax. 6. Being aggrieved, the Appellant is in appeal before this Tribunal. Assailing the impugned order the Learned Counsel for the Appellant Mr S S Gupta, inter alia urges that following the Board Circular No. 98/1/12008-ST, the Commissioner have disallowed the amount of Cenvat Credit with respect to construction services for the period August 2007 to March 2010. 7. The Learned Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, repair of the premises of the provider of output service. In the facts of the present case, Appellant have received works contract services for setting up the commercial premises, from where the Appellant is providing the taxable service renting of immovable property service. Therefore construction service is specifically covered in the definition of input service prior to 01.04.2011. The exclusion clause is introduced only with effect from 01.04.2011. Further Rule 6(5) of CCR specifically mentions construction service as defined under Section 65(105)(zzq). Further Circular No. 137/203/2007 CX 4 dated 01.10.2007, specifically provides that the service of construction of office of service provider, are to be treated as input service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndering of output service, and the same are not consumables, so far the Appellant is concerned. It is further stated that Section 67 of the Finance Act was amended with effect from 14.05.2015 to include reimbursements of expenses as part of the taxable value of service. In the present case the dispute is prior to the said date. 10. It is further urged that under similar facts and circumstances, in the case of M/s Panchasheel Tech Park Private Limited, service tax was not demanded and the proposed demand dropped by the Commissioner in OIO No.22 23-24/PT III/ST/COMMR/2011 12 dated 28.11.2011. The said Order is accepted by the Department and no appeal filed. The Learned Counsel also demonstrated during the course of hearing that the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we hold that the Appellant is entitled to the Cenvat Credit on receipt of input services under dispute. 14. So far the levy of service tax on reimbursement of electricity and water charges is concerned, we find that this very Bench have held that no service tax is chargeable on the amount of recovery of water and electric charges on actual basis, in the appeals of L T Infocity and K. Raheja. Similar view was also taken by co-ordinate Bench at Allahabad in Logix Soft Tel Private Limited., [2019 (20) GSTL 545 (Tri-All)]. Accordingly, following the precedents, we set aside the demand on this score also. 15. In the facts and circumstances, we also find that no case for invocation of extended period is made out. Accordingly, the show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X
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