DLF LTD. Vs. COMMISSIONER OF S.T., (ADJ.)

JUDGEMENT

(1.) Having heard counsel for the appellant, we do not see any reason to entertain the present appeal and interfere with the impugned order. We have read and examined the views expressed by the Judicial Member and the Technical Member. Third Member has agreed with the view taken by the Technical Member. The appellant had taken credit of inputs used in construction of building under the Cenvat Credit Rules, 2004. The Tribunal in the impugned order has referred to the views expressed by the Andhra Pradesh High Court and the Gujarat High Court, which are somewhat divergent. After prima facie examination of the relevant provisions and noticing the language, the appellant has been directed to pay 35% of the Cenvat credit availed on input used in the construction of the building. At this stage, we would not like to express detailed opinion on merits, but only record that input as defined in Rule 2(k)(i) of the Cenvat Credit Rules, 2004 refers to all input tax paid on all goods used for providing any output service'. The tribunal referring the said language has directed payment of the said percentage as the appellant, a owner of a shopping mall has claimed set off or credit on inputs used in construction against Service Tax payable on renting of immovable property, maintenance and repair services and sale of space on time for advertisement services. Tribunal has granted complete waiver in respect of input services, in spite of the fact that the appellant is taking advantage of Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007.

(2.) As a result of the finding of the Tribunal, the appellant - DLF Cyber City Developers Limited, have been asked to deposit Rs. 8.7 crores as against demand of more than Rs. 50 crores and DLF Limited has been asked to deposit Rs. 1.11 crores as against demand of nearly Rs. 39 crores.

(3.) Financial stringency was not alleged or stated either before the Tribunal or before us.