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2013 (12) TMI 1033 - AT - Central ExciseDenial of CENVAT credit on materials Waiver of pre-deposit Held that - Prima facie, the materials used in the manufacture of immovable structures are not covered by the explanation - It is true that the period of dispute is almost entirely prior to 07.07.2009 but this fact does not ipso facto go to support the appellant in the present context inasmuch as the amendment made to the above explanation under Notification No. 16/2009 Relying upon Vandana Global Ltd. Vs. CCE, Jaipur 2010 (4) TMI 133 - CESTAT, NEW DELHI (LB) - After examining the definition of input service given under Rule 2(l) of the CCR, the services used in the setting up of factory are squarely covered by the inclusion part of the definition - While denying CENVAT credit on some of the input services on the above technical ground, the learned Commissioner did not dispute the tax-paid nature of the services and the nexus of the services with the business of manufacture of cement - Prima facie the appellant has case in their favour against the CENVAT credit denied on the input services appellant directed to pre-deposit Rupees Fifty Lakhs upon such submission rest of the duty to be waived till the disposal Partial stay granted.
Issues involved:
1. Denial of CENVAT credit on materials like Aluminium Scrap, TMT Bars, MS Plates, Cement, etc., used for setting up a cement factory. 2. Denial of CENVAT credit on various services claimed as 'input services' for setting up the factory. Analysis: Issue 1: Denial of CENVAT credit on materials for setting up the cement factory The appellant sought waiver of pre-deposit and stay of recovery for denied CENVAT credit on materials used in constructing the factory. The appellant classified items like Aluminium Scrap, TMT Bars, etc., as capital goods under the CENVAT Credit Rules 2004. However, both contentions, including claiming CENVAT credit under Rule 2(k) of the CCR 2004, were rejected. The Tribunal found no prima facie case for the appellant due to various reasons. Firstly, the materials were used for erecting immovable structures like pre-heater and silos, which were not considered excisable goods. The argument regarding the immovability/non-excisability of structures was not found to support the admissibility of CENVAT credit. Additionally, the definition of capital goods did not include spares/components/accessories of storage tanks as capital goods for CENVAT credit purposes. The adjudicating authority also found no nexus of the materials with the cement manufacturing process, as they were used for laying foundations and structural support. Issue 2: Denial of CENVAT credit on input services for setting up the factory The appellant's plea against the denial of CENVAT credit on 17 input services was also considered. Some services were not recognized as input services by the adjudicating authority due to a lack of nexus with cement manufacturing. For other services, credit was denied based on technical grounds related to invoice addresses not matching the factory address. However, upon examining the definition of input services under Rule 2(l) of the CCR, it was found that services used in setting up the factory were covered. The Tribunal noted that while some services were denied credit on technical grounds, their tax-paid nature and nexus with the business of manufacturing cement were not disputed by the Commissioner. Therefore, a prima facie case was found for the appellant against the denial of CENVAT credit on input services. In conclusion, the Tribunal directed the appellant to pre-deposit a specified amount towards the denial of CENVAT credit on structural items and granted waiver of pre-deposit and stay of recovery for the remaining dues, including penalties, upon compliance.
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