Case Law Details
CESTAT, AHMEDABAD BENCH
Venus Investments
Versus
Commissioner of Central Excise, Vadodara
MISC. ORDER NO.M/1292 OF 2012-WZB/AHD
APPLICATION NO.ST/ROM/672 OF 2012
APPEAL NO. ST/344 OF 2010
JULY 27, 2012
ORDER
1. The appellants are seeking rectification of mistake in the Venus Investments v. CCE [2012] 27 taxmann.com 156 (Ahd. – CESTAT).
2. Heard the both sides.
3. Ld. Counsel appearing on behalf of the appellants submitted that the issue involved itself has been wrongly considered since the Tribunal relied upon the decision of the Tribunal in the case of Mundra Port & SEZ Ltd. v. CCE [2009] 18 STT 314 (Ahd. – CESTAT), which relates to inputs whereas in this case the appellant has availed credit on only input services. Secondly, it was submitted that ld. Counsel made a statement that the Tribunal in the case of Navratna S.G. Highway Property (P.) Ltd. v. CST 353 STT (Ahd. – CESTAT) considered the issue and allowed the benefit of Cenvat credit of Service Tax paid on input services, order has not been received, was also not considered. He submits that the order, the operative portion of which had been pronounced in the open court after hearing, has been passed on 3-2-2012. In spite of the request made for keeping it in abeyance, order was passed on 17-1-2012 and since the operative portion had already been pronounced, the ld. Single Member should have kept the decision in abeyance and thereafter followed the decision of the Division Bench. He submits that this constitutes an error apparent and seeks rectification.
4. I find considerable force in the arguments advanced by the ld. Counsel. On going through the order, it is seen that the reliance has been placed on the decision in the case of Mundra Port & SEZ Ltd. (supra) which is related to the input and further reliance has also been placed on the decision in the case of Vandana Global v. CCE 2012 (253) ELT 440 (Tri.-LB)], which also relates to the capital goods. The decision of the Tribunal in the case of Navratna S.G. Highway Property (P.) Ltd. (supra) is directly on the same issue and further was rendered by following the decision of the Hon’ble High Court of Andhra Pradesh in the case of CCE v. SaiSahmita Storages (P) Ltd. – 321 STT 306 (AP), to come to a conclusion that the Cenvat credit of services availed during construction would be available and the decision is applicable squarely to the facts in this case. Accordingly, the paragraphs 8 & 9 of the order of this Tribunal dt. 17-1-2012 are substituted by following paragraph.
“8. However, the decisions considered above and the arguments advanced, are not relevant in view of the fact that this Tribunal in the case oiNavratna S.G. Highway Property Pvt. Ltd. in Order No. A/47/WZB/ AHD/2012, dt. 17-1-2012, has considered the same issue and has come to the conclusion that the credit of Service Tax paid on the services used during construction of immovable property which is rented subsequently, is admissible for payment of Service Tax. Respectfully following the decision of the Division, Bench of this Tribunal, the impugned order is set aside and the appeal is allowed with consequential relief to the appellant.”
5. The ROM application is disposed of accordingly.
