2016 (1) TMI 1053 - AAR - Service Tax

Manufacturing activity or service - repair and maintenance of the equipments so that the same can be re-used without requiring replacement - The equipments repaired are generally 3-7 years old or are damaged due to transportation or due to fire / floods / rains or are not working efficiently due to any technical defect etc. - Held that - The activity of repair and maintenance proposed to be undertaken by the applicant will not amount to manufacture within the meaning of section 2(f) of the Central Excise Act, 1944. Eligibility to avail CENVAT credit of Excise Duty - parts and spares used for the replacement of the defective ones and Service Tax paid on inspection, certification, engineering services etc. for the aforesaid repair and maintenance activities and claim set off against the output service tax paid for rendering of passive infrastructure services by the Applicant to its customers - Held that - The applicant is eligible to avail Cenvat Credit of Excise Duty under the Central Excise Act, 1944 / Additional Duty of Excise under Section 3(1) of the Customs Tariff Act, 1975 paid on parts and spares used for their replacement of the defective ones and Service Tax paid on inspection, Certification and engineering services etc. for the aforesaid repair and maintenance activities and claim set off against the output service tax paid for rendering of passive infrastructure service by the applicant to its customers.

Issues Involved:
1. Whether the activities of repair and maintenance proposed to be undertaken by the applicant amount to manufacture within the meaning of Section 2(f) of the Central Excise Act, 1944.
2. The basis for arriving at value for the purpose of Excise Duty under the Central Excise Act, 1944 and Rules made thereunder, if the activities amount to manufacture.
3. Eligibility to avail CENVAT credit of Excise Duty and Service Tax on parts, spares, and services used in repair and maintenance activities.

Issue 1: Whether the activities of repair and maintenance proposed to be undertaken by the applicant amount to manufacture within the meaning of Section 2(f) of the Central Excise Act, 1944.

The applicant, M/s Indus Towers Limited, is engaged in providing telecommunication infrastructure support services and proposes to undertake repair and maintenance of its equipment. The applicant argued that the activities involving mere repair of goods, where there is no change in the identity of products, do not amount to manufacture. The applicant cited judicial precedents stating that for an activity to be considered as manufacture, it must result in a new commercial product with a distinct name, character, or use, and there should be a loss of the original identity of the product.

The Revenue agreed with the applicant's position that mere repair of goods does not amount to manufacture. The Authority for Advance Rulings (AAR) noted that the Commissioners of Central Excise, Hyderabad-I, and Jaipur-I, also opined that the activities involving mere repair do not amount to manufacture. Consequently, the AAR held that the repair and maintenance activities proposed by the applicant do not amount to manufacture within the meaning of Section 2(f) of the Central Excise Act, 1944.

Issue 2: The basis for arriving at value for the purpose of Excise Duty under the Central Excise Act, 1944 and Rules made thereunder, if the activities amount to manufacture.

Since the activities of repair and maintenance were held not to amount to manufacture, this issue became infructuous and was not further deliberated.

Issue 3: Eligibility to avail CENVAT credit of Excise Duty and Service Tax on parts, spares, and services used in repair and maintenance activities.

The applicant sought to determine whether they are eligible to avail CENVAT credit on:
a) Service Tax paid on input services such as certification, inspection, and engineering services provided by third-party vendors for the repair of capital goods.
b) Excise Duty paid on parts and spares used in repairing capital goods.

Sub-issue (a): Eligibility to avail CENVAT credit on Service Tax paid on input services.

The applicant argued that as per Rule 3(1) of the CENVAT Credit Rules, 2004, a provider of output service is allowed to take credit of Service Tax paid on any input service received. The Revenue accepted this contention, agreeing that the applicant is eligible to avail CENVAT credit on Service Tax paid on certification, inspection, and engineering services used for repair and maintenance activities. The AAR concurred, holding that the applicant is eligible to avail CENVAT credit on Service Tax paid on these input services.

Sub-issue (b): Eligibility to avail CENVAT credit on duty paid on parts and spares.

The applicant contended that parts and spares procured from third-party vendors and used for replacing defective parts of equipment should be considered as capital goods under Rule 2(a)(A)(iii) of the CENVAT Credit Rules, 2004, and thus eligible for CENVAT credit. The Revenue had mixed responses; while the Central Excise Commissionerate, Jaipur, agreed with the applicant, the Commissionerates of Hyderabad and Kolkata opposed the application based on different grounds.

The AAR observed that DG sets, Air Conditioners, etc., fall under Chapter 85 and are considered capital goods. Therefore, parts of these items are also capital goods, and the applicant, as a provider of output service, is allowed to take credit of duty paid on these parts under Rule 3 of the CENVAT Credit Rules, 2004. The AAR dismissed the objections raised by the Revenue, noting that the Departmental Instruction dated 08.07.2010 pertains to manufacturers and not to service providers like the applicant.

Conclusion:

The AAR ruled that:
1. The activities of repair and maintenance proposed by the applicant do not amount to manufacture within the meaning of Section 2(f) of the Central Excise Act, 1944.
2. The second issue regarding the basis for arriving at value for the purpose of Excise Duty became infructuous.
3. The applicant is eligible to avail CENVAT credit of Excise Duty and Service Tax on parts, spares, and services used in repair and maintenance activities and can claim set off against the output service tax paid for rendering passive infrastructure services.

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