2013 (1) TMI 165 - AT - Service Tax

Cenvat Credit of service tax paid on input services used for ammonia storage tank - denial of Credit as storage tanks are attached to earth and therefore are immovable property and also that the services are being used outside the factory premises - Held that - As under Rule 4(7) there is no such restriction about the use of input services outside the factory but Rule 4(7) is to be read with definition of input service under Rule 2(l) of the Cenvat Credit Rules stating that only those services will qualify for the input services which are used after input stage or those input services are used in the manufactured or produced from input or said service Ammonia is imported by the appellant and after goods are cleared from the port and the goods are delivered to the appellants. Procurement of the input is over after taking delivery of the goods. Thereafter appellants are eligible for credit of service tax paid on inward transportation of the inputs as per definitions of the input service. Thus finding that Consulting Engineer Service, Technical Inspection and Certification Service, Construction Service and erection, commissioning and installation service are used in installation of storage tanks outside the factory. Inclusive definition of input service also includes input services used in relation to storage upto the place or removal. Storage upto place of removal will include the storage of final products and not storage of inputs because whenever legislature wanted to give the benefit, in respect of inputs it has done so by specifically mentioning as procurement of inputs and inward transportation of the inputs. Therefore, input services used in relation to storage of inputs outside the factory will not be eligible for the credit. Since the appellants were not eligible for the Cenvat Credit penalty under Rule 15A and also the interest has rightly been confirmed by the adjudicating authority - against assessee.

Summary

Issues:
Appeal against denial of Cenvat Credit for input services used in the installation of an ammonia storage tank outside factory premises.

Analysis:

1. Background and Facts:
The appellant, engaged in manufacturing excisable goods, installed an ammonia storage tank at a location outside their factory premises. The Department issued a show cause notice demanding CENVAT Credit for services used in the installation of the storage tank, which was considered immovable property. The Commissioner confirmed the duty demand, interest, and imposed a penalty. The appellant appealed the decision.

2. Appellant's Arguments:
The appellant contended that denial of Cenvat Credit was based on the premise that the storage tank was outside the factory premises and attached to the earth, making it immovable property. However, the appellant argued that the definition of input service under Cenvat Credit Rules does not restrict the use of input services to inside the factory. They asserted that the services were necessary for their business and should qualify for Cenvat Credit.

3. Revenue's Position:
The Revenue representative supported the Commissioner's findings, emphasizing that since the storage tank was outside the factory premises, Cenvat Credit for services used in setting it up should be denied.

4. Tribunal's Decision:
The Tribunal analyzed the definition of input services under Cenvat Credit Rules, highlighting that services used in the manufacture of excisable goods qualify for Cenvat Credit. It noted that the inclusive definition of input services specifically mentions procurement of inputs and inward transportation, limiting the benefit to services related to inputs. The Tribunal found that the services used in setting up the storage tank outside the factory did not qualify for Cenvat Credit.

5. Precedents and Rulings:
The Tribunal distinguished the appellant's cited cases where input services were used inside the factory from the present case where services were utilized outside the factory premises. Additionally, the Tribunal differentiated the High Court judgments concerning denial of credit on inputs used in storage tanks inside the factory, which were deemed capital goods, from the current scenario involving input services used outside the factory.

6. Conclusion:
The Tribunal upheld the Commissioner's decision, dismissing the appeal on the grounds that the input services used in the installation of the storage tank outside the factory did not qualify for Cenvat Credit. Consequently, the penalty under Rule 15A and interest were deemed justified.

In summary, the Tribunal ruled against the appellant, affirming the denial of Cenvat Credit for input services used in setting up an ammonia storage tank outside the factory premises, based on the specific definitions and limitations outlined in the Cenvat Credit Rules.