Custom, Excise & Service Tax Tribunal
Oberoi Mall Ltd vs Commissioner Of Service Tax, Mumbai-Ii on 17 February, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. I Appeal No. ST/369/12-Mum, ST/86947 to 86949/14-Mum [Arising out of Order-in-Original No. 04-06/ST/RS/2014 dated 30/01/2014 passed by Commissioner of Service Tax, Mumbai] For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) =======================================================
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
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Oberoi Mall Ltd.
:
Appellant
VS
Commissioner of Service Tax, Mumbai-II
:
Respondent
Appearance
Shri S. S. Gupta, Chartered Acctt. for the Appellant
Mrs. P. V. Shekhar, D.C. (AR) for the Respondent
CORAM:
Honble Mr. M.V. Ravindran, Member (Judicial)
Honble Mr. C.J. Mathew, Member (Technical)
Date of hearing: 17/02/2016
Date of decision: 17/02/2016
ORDER NO.
Per : M.V. Ravindran
All these appeals are directed against Order-in-Original No. 04-06/ST/RS/2014 dated 30/01/2014.
2. Heard both sides and perused the records.
3. The issue that falls for consideration is whether the appellant had availed the Cenvat Credit of input service of construction services and other services is correct or otherwise.
4. The appellants have constructed malls at various locations for renting out the shops in the mall to various parties, on which service tax is discharged under the category of Renting of Immovable Property Services. The appellants have availed the Cenvat Credit of input services which are used for construction and maintenance of the various malls. It is the case of the Revenue that appellant could not avail the Cenvat Credit on such input services.
5. Ld. Chartered Accountant submits that the issue is now covered by the judgment of the Tribunal in the case of Navaratna S.G. Highway Properties (P) Ltd. 2012 (28) STR 166 (Tri.-Ahmd.) and by final order No. A/3807/15 dated 02-12-2015 of this bench.
6. Ld. departmental representative submits that in the case of Galaxy Mercantile Ltd. 2014 (33) STR 3 (All.), Honble High Court of Allahabad has held availment of Cenvat Credit on the construction services is incorrect.
7. The submission made by the Ld. C.A. has strong force in as much, there is no dispute, that the appellant has constructed various malls and rented the same to various parties and discharge of service tax on rent received is also not disputed. The availment of Cenvat Credit on various input services for the construction of the malls and subsequent utilization, we find that in the case of Navaratna S.G. Highway Properties (P) Ltd. (supra), (wherein one of the member of this bench Shri M.V. Ravindran was presiding) this Tribunal held in favour of the assessee by recording as under:
3.2 The definition of inputs is limited to the definition of input services 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 definitions 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. The above reproduced view was followed by this bench of the Tribunal in the case of Vamona Developers Pvt. Ltd. by referring to the judgment of Honble High Court of Karnataka in the case of M. Portal India Wireless Solutions Pvt. Ltd. 2012 (27) STR 134 (Kar.) and the judgment of Honble High Court of Andhra Pradesh in the case of Sai Sahmita Storages Pvt. Ltd. 2011 (270) ELT 33 (A.P.) and held in the favour of the appellant. We do not find any reason to deviate from such a view already taken on this issue.
8. As regard the judgment relied upon by the departmental representative in the case of Galaxy Mercantile Ltd. (supra), we find that Honble High Court of Allahabad has only affirmed a prima-facie view on pre-deposit of amount. The view expressed by the Honble High Court is only prima-facie view. In the case of Navaratna S.G. Highway Properties (P) Ltd. (supra) and various judgments, the Tribunal has taken the final view while disposing the appeals.
9. In view of the foregoing, we find that the impugned orders are liable to set aside and the appeals are allowed with consequential relief, if any.
(Operative order pronounced in court) C.J. Mathew Member (Technical) M.V. Ravindran Member (Judicial) saifi 5 Appeal No. ST/369/12-Mum, ST/86947 to 86949/14-Mum