2012 (28) STR 166 (Tri.-Ahmd.) Navaratna S. G. Highway Prop. Pvt. Ltd. vs. Commr. Of S. T., Ahmedabad.

Facts:
The appellants were engaged in the business of construction of malls and renting out spaces in such constructed malls and providing space for advertisement in malls. The appellants availed CENVAT credit of input services such as tours and travel agent services, security services, etc. during the year 2007-2008 and utilised the same against renting of immovable property services during the year 2008-2009 once the mall was opened commercially.

The contention of the department was that the appellants were not eligible to avail CENVAT credit, since input services were not used by the appellants for providing taxable output service. The appellants in response to the department’s contention argued that input services were used for construction of mall which was owned and leased by the appellants. The appellants further added that without a mall, there could not be any output service and therefore, services were eligible input services vide provisions of CENVAT Credit Rules, 2004. The department contested that vide Circular no. 98/1/2008-ST dated 04-01-2008, commercial or industrial construction services or works contract services, were input services for immovable property which was neither goods exigible to excise duty nor service leviable to service tax and therefore, CENVAT credit was not available to the appellants.

Held:
The definition of input and input services are pari materia as far as service providers are concerned and therefore, following the decision delivered by the Andhra Pradesh High Court in case of Sai Samhita Storages (P) Ltd. 2011 (23) STR 341 (AP), the Tribunal held that without utilising services, the mall would not have been constructed and renting would not have been possible and therefore, the services used for construction of malls were eligible input services for availment of CENVAT credit even when the output service was renting of immovable property services.