2019 (7) TMI 1405 - AT - Central Excise

CENVAT Credit - inputs - Repairs and Maintenance Services as that of fitting, fabrication work, dismantling work, etc. - period w.e.f. April 2011 to June 2017 - scope of inputs beyond 01 April, 2011 - HELD THAT - The cenvat credit for the similar services availed by the appellant prior 01.04.2011 has been allowed to the appellant. The impugned 9 show cause notices cover the period beyond April 2011 to June 2017, which have been issued after the amendment in the definition of inputs having an exclusion clause thereof - the activities as that of Fabrication, Erection and Commissioning are covered under the inclusive part of the input services till they are meant for Repair, Maintenance, Renovation or Modernisation of the factory or the premises and even the office of the manufacturer. These services are not to be considered as input, if and only if, the services are used for erecting a civil structure or for erecting a support structure for the machinery. Further, Commissioner has not specified as to what fabrication and erection amounts to support of capital goods. We are of the opinion that demand cannot be confirmed on the basis of the conjunctions and surmises. Findings of Commissioner (Appeals) are, therefore, held to be unreasonable and without any reasoning and thus are hereby set aside. Demand with respect to the cenvat credit availed on the fabrication/ dismantling amounting to civil works as was availed in the period April 2011 to May 2011 - HELD THAT - The Commissioner is observed to have created a right bifurcation of the fabrication/dismantling work with respect to the civil structure/ support structure and with respect to the repair, maintenance. Hence, we hereby confirm this demand and take this observation of the Commissioner to be an additional ground for setting aside the remaining demand. The CENVAT credit availed on the fabrication/dismantling, etc. qua the civil work the denial thereof is confirmed - the denial with respect to remaining cenvat credit is hereby set aside - appeal allowed in part.

Summary

Issues:
Appeal against denial of cenvat credit on Repairs and Maintenance Services under amended definition of inputs post-April 2011.

Analysis:
The appellant, engaged in pharmaceutical manufacturing, appealed against denial of cenvat credit for services like Renovation, Maintenance, Repair, Fabrication, Dismantling, etc., availed between April 2011 to June 2017. The denial was based on an amendment in the definition of inputs post-April 2011, excluding certain services. The appellant argued that the services fell within the inclusive part of input services. The Tribunal considered pre and post-2011 definitions of Input Service to determine the admissibility of cenvat credit. It was noted that activities like Fabrication, Erection, and Commissioning are covered under input services if meant for Repair, Maintenance, Renovation, or Modernisation, but not if used for erecting civil structures or support structures for machinery.

The Tribunal reviewed a verification report by the Jurisdictional Range Officer, stating that services like Dismantling and Fabrication were not excluded from the definition of inputs post-April 2011. The report highlighted that services for Renovation and Modernisation directly related to the manufacturing process should be covered in the inclusion clause. The Commissioner's examination of Annual Maintenance Contracts revealed that Fabrication, Commissioning, and Erections were related to existing structures for Renovation, Repair, Maintenance, or Modernisation, falling within the definition of input services. The Commissioner's doubt regarding fabrication work's purpose was deemed unreasonable, lacking reasoning, and set aside.

Regarding cenvat credit on fabrication/dismantling for civil works between April 2011 to May 2011, the Tribunal confirmed the demand based on a show cause notice. The Commissioner's distinction between civil works and repair/maintenance was upheld, leading to partial setting aside of the order. The Tribunal confirmed the denial of cenvat credit on civil work but set aside the denial for other services, allowing the appeal partially.