M/s Hotel Leela Venture Ltd. Versus Commissioner (Audit), Central Excise & CGST, Jodhpur
Central Excise
2018 (7) TMI 970 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 27-6-2018
Excise Appeal No. E/51358/2018 [SM] – A/52443/2018-SM[BR]
Central Excise
MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
Present for the Appellant: Mr. Narendra Pati, Advocate
Present for the Respondent: Mr. H. Saini, D.R.
ORDER
PER: RACHNA GUPTA
Present is an Appeal against the Order of Commissioner (Audit) dated 16.02.2018.
2. The appellant herein is engaged in providing the taxable services of accommodation in hotel for lodging purposes. The Department, during an audit for the period 01.04.2010 to 31.03.2015 and subsequently for April, 2015 to March, 2016 observed that the appellant has availed a total of cenvat credit on annual maintenance of lifts installed in the building. It is the case of the Department that the said service do not fall in the category of the input service. Re
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ervice as such fall in the exclusion clause of the input definition. It is submitted that the said allegation is not at all sustainable. The decision of Mumbai Tribunal in the case Redhat India Pvt. Ltd. vs Principal Commissioner of Pune, 2016 (44) STR 45 (Tri.-Mumbai) has been impressed upon to submit that the maintenance of lift in the appellants premises is very much the part of the inclusive definition of the input services. The impugned Order is accordingly, prayed to be set aside and the Appeal is prayed to be allowed.
5. While rebutting these arguments, Ld. DR has impressed upon para 8 of the impugned order where the Commissioner (Audit) has explained the definition of Work Contract and has mentioned that the repair or renovation of a building or civil structure is included in the construction service. While justifying the said Order it is submitted by the Ld. DR that the decision of Tribunal Hyderabad has rightly been relied upon by Commissioner (Audit) and the decision has be
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d the said imported goods are his inputs or capital goods; or
(ii) any service used by a provider of output service for providing an output service; or
(iii) any service used by a 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 modernisation, 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, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation upto the place of removal, but excludes:
(A) service portion in the execution of a works con
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epair of the premises of provider of output services. It is an apparent and admitted fact that the appellant is providing output services of accommodation/ lodging from the said premises. The use of word repair and maintenance in the Works Contract, to my opinion, is not applicable to the given circumstances as the definition of Works Contract has to be read as a whole and the perusal thereof makes it clear that when the repair, maintenance, etc. is the part of a contract where construction is also an activity then that renovation will be covered under the definition of Work Contract else it will be very much inclusive part of the definition of input. It is observed that the India Cements Ltd. vs CCE, Guntur has wrongly been relied in the impugned order. The issue therein was the cleaning and maintenance of garage which was held to be exclusive of the definition of input service. More precisely applicable is the case of Red Hat India Pvt. Ltd. vs Principal Commissioner, Pune 2016 (44)
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