2018 (9) TMI 1135 – MADRAS HIGH COURT – TMI – CENVAT Credit – input services – Construction services – Held that:- The conclusion of the Tribunal is well founded, as construction service is an eligible service for credit for providing output service of renting of immovable property and without construction of the building, the renting of immovable property cannot be provided – Appeal dismissed – decided against Revenue. – Civil Miscellaneous Appeal No.2021 of 2018 & CMP.No.15699 of 2018 Dated:- 10-9-2018 – 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
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nput with respect to service tax amount of ₹ 5,08,20,984/- towards 'commercial or industrial construction service' during 2008-09 for the payment of service tax towards '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 ₹ 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 let
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ed the demand made in the said show cause notice vide order dated 14.9.2010. Challenging the order of the Adjudicating Authority, the assessee preferred an appeal before the Tribunal. The Tribunal 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 contend
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