CESTAT remands issue Adjudicating Authority to examine evidences for quantifying credit of Excise Duty or Additional Customs Duty [Read Order]

CESTAT - Adjudicating Authority - Excise Duty - Additional Customs Duty - Taxscan

The Delhi Bench of Customs, Excise, and Service Tax Appellate Tribunal (CESTAT)  remands the issue of Adjudicating Authority to examine the evidence for quantifying credit of Excise Duty or Additional Customs Duty.

The appellant, M/s Indore Treasure Market City Pvt. Ltd. was engaged in the business of setting up and managing shopping centers, family entertainment centers, multiplexes, etc. popularly known as “Malls”. The appellant registered itself with the Service Tax Department for Renting of Immovable Property Service, Maintenance and Repair Services, Advertising Services, GTA Services, Management Consultancy Services, etc., intended to be provided by them. The appellant availed the credit on inputs like cement, steel, angles, channels, etc., and input services like construction services, consultancy, architect and allied services, etc., used by them in the construction of “Malls”. After an audit of appellants’ records, the Department opined that the appellant was not eligible to avail such credit. Show Cause Notice was issued wherein recovery of CENVAT credit availed and utilized was confirmed under Rule 14 of CENVAT Credit Rules 2004 along with applicable interest and penalty.

The issue raised was whether the credit of Excise Duty/Additional Customs Duty (CVD) on inputs and capital goods and credit of Service Tax paid on input services which have been used for the construction of Mall, further used/usable for providing taxable output service was admissible to the appellants.

The appellant submitted that definition of “Input” and “Input Service” had undergone a change with effect from April 1, 2011, by Notification dated March 1, 2011, and it is evident that goods used in the construction of a building or a civil structure are excluded from April 1, 2011, but were included to be eligible for CENVAT credit prior to April 1, 2011; therefore, the credit availed by the appellant prior to April 1, 2011, has rightfully been availed.

 The Coram is headed by the President, Dilip Gupta, and Technical Member P. Anjani Kumar while partially allowing the petition remanded the issue to the adjudicating authority for quantifying the credit admissible. The appellant shall submit all the evidence it would like to rely upon for the purpose of availing credit claimed by it within two weeks of receipt of this order. We also order that the Adjudicating Authority shall examine all the evidence in form of records/ documents/ certificates as may be submitted by the appellant and allow the credit, as found admissible, to the appellant and pass an order preferably within six weeks of the submission of such evidence.

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