The Commissioner of GST & Central Excise, Chennai Versus M/s. Dymos India Automotive Private Limited
Central Excise
2018 (9) TMI 1135 – MADRAS HIGH COURT – 2019 (365) E.L.T. 26 (Mad.)
MADRAS HIGH COURT – HC
Dated:- 10-9-2018
Civil Miscellaneous Appeal No.2021 of 2018 & CMP.No.15699 of 2018
Central Excise
Mr. T. S. Sivagnanam And Mrs. V. Bhavani Subbaroyan JJ.
For the Appellant : Mr.V.Sundareswaran
JUDGMENT
T.S. SIVAGNANAM, J.
We have heard the learned Senior Standing Counsel for the appellant.
2. The appeal by the Revenue, filed under Section 35G of the Central Excise Act, 1944 read with Section 83 of Chapter V of the Finance Act, 1994, is directed against the final order passed by the Customs, Excise and Service Tax Appellate Tribunal dated 04.1.2018.
3. The appeal is admitted on the following substantial questions of law:
“i. Whether the CENVAT Credit relating to 'commercial or industrial construction service' can be utilized for payment of servi
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renting of immovable property services'.
5. The case of the Department was that the assessee leased out a part of the factory premises to one M/s.Hanil Lear India Private Limited (for brevity the HLIPL) vide land and licence agreement dated 18.8.2008 for a period of 11 months. However, in March 2009, the CENVAT credit was taken. Hence, the Department was of the view that the assessee had not used the input service relating to that portion in or in relation to the manufacture of their finished products.
6. Summons were issued to the assessee, pursuant which, a statement was recorded. Subsequently, the assessee paid a sum of Rs. 1,20,18,840/- including cess from their CENVAT credit account on 23.9.2009 under protest and intimated the same vide their letter dated 24.9.2009. In response to the letter sent by the Department, the assessee, vide letter dated 29.12.2009, stated that an area of 1968.10 sq.meters was leased out to the HLIPL and the proportionate credit was reversed. It was
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ribunal allowed the appeal filed by the assessee vide order dated 04.1.2018, which is impugned in this appeal.
8. We have heard Mr.V.Sundareswaran, learned Senior Standing Counsel for the appellant.
9. The Tribunal took note of the allegations in the said show cause notice ie. the assessee was not eligible for input service credit availed under the head 'commercial or industrial construction activities' during the period 2008-09. The Tribunal, after referring to the definition 'input service' as it stood at the material time under Rule 2(3) of the said Rules, pointed out that the first limb of the definition made it clear that in the case of service provider, the service tax paid would be eligible input service, if the service is used for providing output service. The assessee contended that they were both manufacturer and provider of output service, that for the portion of the building used for manufacturing activity, the appellant was eligible for credit of service
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