2017 (8) TMI 513 - AT - Service Tax

Refund claim of construction/ repair and maintenance service - input services - rejection on the ground that from the records it is not clear that the construction service was provided in the same premises of the appellants - Held that - The adjudicating authority has applied the amended definition of input service, which did not exist at the relevant time. Therefore in my view, the rejection of refund claim by the adjudicating authority on the ground that the construction service being in exclusion category is absolutely wrong - As per the definition of input service at the relevant time, the service of setting up/ modernisation, renovation of the factory premises falls under the input service, therefore the construction service used by the appellants is admissible input service. Therefore they are eligible for refund of the CENVAT credit availed on construction service - appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund claim under Rule 5 partly allowed by adjudicating authority, rejected in part by Commissioner (Appeals) for construction/repair and maintenance service. Appellants filed appeal against Order-in-Appeal.

Analysis:
The appellants filed a refund claim under Rule 5, which was partially allowed by the adjudicating authority. However, the Commissioner (Appeals) rejected part of the claim related to construction/repair and maintenance service amounting to ?3.25 lakhs, citing lack of clarity on whether the service was provided in the same premises of the appellants. The appellants challenged this decision by filing an appeal.

The Assistant Manager (Excise) argued that the construction service was provided in the factory premises, falling under the category of setting up of factory premises, which is an admissible input service. He contended that no show-cause notice was issued disputing the admissibility of the service, and the availed cenvat credit should not be disputed. He also cited precedents to support his argument.

The Revenue representative reiterated the findings of the impugned order, supporting the rejection of the refund claim related to the construction service.

The Member (Judicial) observed that the rejection of the refund claim based on the construction service being in the exclusion category was incorrect. The adjudicating authority applied an amended definition of input service that did not exist at the relevant time. The Member also noted that the Commissioner (Appeals) upheld the rejection based on lack of documentary evidence showing the service was used in the factory premises, which was not raised by the adjudicating authority. The Member emphasized that the construction service used by the appellants was an admissible input service under the relevant definition, making them eligible for the refund. The Member highlighted that the appellants were not issued a show-cause notice on the admissibility issue, and the rejection of the refund without deciding the nature of the service violated principles of natural justice. Referring to a previous Tribunal order in a similar case, the Member concluded that the impugned order was not sustainable and allowed the appeal, setting aside the decision.

In conclusion, the judgment addressed the issues surrounding the rejection of a refund claim for construction/repair and maintenance service, emphasizing the admissibility of the service as an input service and highlighting procedural violations in the adjudication process. The Member's detailed analysis and reliance on legal precedents led to the appeal being allowed, overturning the previous decisions.