By Puloma Dalal, Jayesh Gogri, Chartered Accountants
fiogf49gjkf0d
Services used for construction of immovable property are not eligible input services to avail CENVAT Credit.
Facts:
The appellants were engaged in providing renting of immovable property services. The appellants availed CENVAT credit of industrial or commercial construction services for construction of an immovable property. 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. The appellants argued that the Circular clarified the position contrary to law and was required to be ignored as held in the case of Ratan Melting and Wire Industries 2008 (12) STR 416 (SC).
Held:
As observed by this Tribunal in case of Mundra Port and Special Economic Zone Ltd. vs. CCCE, Rajkot 2009 (13) STR 178 (Tri.-Ahmd.), the phrase “used for providing output services” has to be differentiated from the phrase “used in or in relation to the manufacture of the final product”. The Hon’ble Supreme Court’s decision in case of Ratan Melting and Wire Industries (Supra) was misconstrued. In the said case, the Hon’ble Supreme Court had only held that departmental circulars and instructions issued by the board were binding on the authorities of respective statute and not on Hon’ble Supreme Court or High Courts and rejected the appellant’s claim of CENVAT credit.
