Custom, Excise & Service Tax Tribunal
The Agriculture Produce Market ... vs Commissioner Of Central Excise & S.T., ... on 30 October, 2015
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad Appeal No. : ST/12398/2014 (Arising out of OIA-VAD-EXCUS-002-APP-123/14-15 dated 16.05.2014, passed by Commissioner (Appeals) Central Excise, & S.T., Vadodara) The Agriculture Produce Market Committee : Appellant (s) VERSUS Commissioner of Central Excise & S.T., Vadodara : Respondent (s)
Represented by :
For Appellant (s) : Ms. Harpinder Sandhu, Advocate For Respondent (s) : Shri S. Shukla, Authorised Representative For approval and signature :
Mr. P.M. Saleem, Honble Member (Technical) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?3
Whether their Lordships wish to see the fair copy of the Order?
Seen 4 Whether Order is to be circulated to the Departmental authorities?
Yes CORAM :
Mr. P.M. Saleem, Honble Member (Technical) Date of Hearing / Decision : 30.10.2015 ORDER No. A/11588 / 2015 Dated 30.10.2015 Per : Mr. P.M. Saleem The appellants are before us in the present appeal aggrieved by the impugned Order-in-Appeal, which upheld the impugned order-in-original.
2. Heard both sides. The learned counsel for the appellants, at the outset, submits that the matter is covered by the decision of this Tribunal in their own case for the earlier period. She cites final Order No. A/10385-10386/WZB/AHD/2013 dated 12.02.2013. She further submits that the said decision was also followed subsequently by the Tribunal in their own case for another period in the final order dated 16.08.2013. On a query from the Bench, learned Authorised Representative for the Revenue reluctantly agreed that the matter is covered in favour of the appellants.
3. After hearing both the sides and on perusal of the records, it is observed that this Tribunal had gone into merits of the case in the final order dated 12.02.2013. For better appreciation, the same is reproduced below:-
5. I have considered the submissions made at length by both sides and perused the records. The issue involved in this case is whether the appellant herein is eligible to avail the CENVAT Credit on the Service Tax paid under the various categories as indicated in Para 2 hereinabove.
6. It is undisputed that the appellant herein is a committee, who hires out godowns constructed by them to the farmers/traders/dealers who would like to store their agricultural products before sale. It is also seen from the records that in order to attract the business of renting of immovable property to various individuals, the appellant herein incurred various expenditures on the advertising, marketing, management consultancy etc. The list of services which have been availed by the appellant would indicate that the services which are received by the appellant are in relation to the business activity of the appellant i.e. renting of godowns to various persons.
7. I find that the judgment of this Tribunal in the case of Navaratna S.G. Highway Prop. Pvt.Ltd (supra) is on an issue which is similar to the issue in the case in hand. The ratio of the said judgment is as under:
3.2. The definition of input is limited to the definition of input service as can be seen from the definition given above. Credit of duty paid on inputs is available when the inputs are used for providing an output service. Therefore, there is a need to say that the inputs have been used for providing an output service. In the case of input service, the definition includes input services used by a provider of taxable service for providing an output service. Therefore the definition of input and input service are pari-materia as far as the service providers are concerned. That being the position, the decision of the Honble High Court of Andhra Pradesh would be applicable to the present case. In that case also, the Honble High Court took the view that without use of cement and TMT bars for construction of warehouse assessee could not have provided storage and warehousing service. In this case also, without utilizing the service, mall could not have been constructed and therefore the renting of immovable property would not have been possible. The issue involved is squarely covered by the decision of the Honble High Court of Andhra Pradesh. Since the service tax demand itself is not sustainable, the question of imposition of penalty does not arise. The appeal is allowed with consequential relief to the appellants.
8. I also find strong force in the contentions raised by the learned Counsel that the judgment of the Hon'ble High Court of Mumbai in the case of Coca Cola India Pvt. Limited (supra) would also cover the issue as their Lordships have categorically stated that the input services would be the services which are used relating to the business activity. In the case in hand, the output service provided by the appellant is intrinsically co-related the services received by them from various service providers.
4. In view of the above, the impugned orders are set-aside. Appeal is allowed.
(Order dictated and pronounced in the open Court) (P.M. Saleem) Member (Technical) .KL 3