2021-VIL-235-CESTAT-CHE-ST

SERVICE TAX CESTAT Cases

Service Tax - Renting of immovable property service - Denial of Input service credit of Service Tax paid on construction of warehouse used for providing renting of immovable property service – HELD – Construction services used for constructing warehouse which were meant for renting which were discharging service tax liability, the duty paid on the inputs or capital goods or services used for construction of the warehouse is available as credit - the credit stand rightly availed by the appellant and utilized for discharge of their service tax liability under the category of 'Renting of Immovable Property' - Denial of CENVAT Credit in respect of renovation services and insurance service – HELD - When works contract services are availed for painting, laying of floor tiles, etc., in the nature of completion of finishing services, these would generally be in the nature of modernisation or repair/renovation of existing structures. Such renovation services would be eligible for credit - service tax paid on all services utilised directly or indirectly in or in relation to final product is eligible for Cenvat credit - the Cenvat Credit on insurance service also becomes allowable as insurance paid for the finished goods stored in the warehouse - Cenvat Credit on Ground Rent – HELD - land in question was leased to developer who in turn leased the same back to the owner for which leased rental was collected from the owner-appellant. Prima facie, the assessee who is the owner of the land, has claimed itself to be the lessee of the portion of the same land and paid rent along with applicable Service Tax - no document evidencing as to how the developer assumed the role of the lessor coupled with the crucial fact as to against which output activity did the assessee seek to take the input Service Tax credit has not been explained - no justifiable reasons to interfere with the findings of the lower authorities denting credit on ground rent - Levy of penalty – the SCN proposed penalty under Rule 15 (3) of the CENVAT Credit Rules, 2004, however, in the adjudication order, the Adjudicating Authority has levied penalty under Rule 15 (1) which, on appeal, has been reduced to Rs. 50,000/- only. The Learned Commissioner (Appeals) has categorically observed that there was no element of fraud, suppression of facts, etc., with an intent to evade tax. The intention as to fraud, suppression of facts, etc., are relevant for the penalty under Rule 15 (3) and hence, the Revenue has not made out any case to rope-in Rule 15 (1) which deals with a different situation altogether. Hence, there is no scope to sustain even the reduced penalty and accordingly, the same is directed to be deleted in toto - Appeal is partly allowed

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