OBEROI MALL LTD Vs CST (2013-TIOL-604-CESTAT-MUM)
Facts of case:
The appellant, M/s. Oberoi Mall Limited, Goregaon, Mumbai are engaged in rendering the taxable service of ‘renting of immovable property' and they discharge service tax liability on these services. They availed CENVAT credit of various services used for construction of the said mall and utilized the credit for payment of service tax on renting of immovable property services. The CBEC vide a Circular No. 98/1/2007-S.T., dated 04/01/2008inter alia clarified that commercial or industrial construction service or works contract service is an input service to the output ‘immovable property' which is neither a service nor goods. Therefore, CENVAT credit of the service tax paid on construction service or works contract service cannot be taken. Accordingly, a show cause notice was issued to the appellants proposing to deny CENVAT credit taken by the appellant on the renting of immovable property service.
Excise duty paid on inputs and service tax paid on input services used in the construction of immovable property can be taken and utilized while discharging service tax liability on the renting of such immovable property. Accordingly, granted unconditional waiver from the pre-deposit of the dues.