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2019 (10) TMI 1097 - AT - Central ExciseCENVAT credit - input services - construction service availed during the period of 2008-09 - CBEC Circular No. 98/1/2008-2011 - HELD THAT - The issue is decided in the case of COMMISSIONER CENTRAL EXCISE COMMISSIONERATE, DELHI-III VERSUS M/S BELLSONICA AUTO COMPONENTS INDIA P. LTD. 2015 (7) TMI 930 - PUNJAB HARYANA HIGH COURT - Each limb of the definition of input service can be considered as an independent benefit or concession exemption. If an assessee can satisfy any one of the limbs of the above benefit, exemption or concession, then credit of the input service would be available. This would be so even if the assessee does not satisfy other limb/limbs of the above definition. To illustrate, input services used in relation to setting up, modernization, renovation or repairs of a factory will be allowed as credit, even if they are assumed as not an activity relating to business as long as they are associated directly or indirectly in relation to manufacture of final products and transportation of final products upto the place of removal. The demand of Cenvat credit cannot be sustained and the same is set aside - Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Denial of Cenvat credit on construction services. 2. Imposition of penalty. Issue-wise Detailed Analysis: 1. Denial of Cenvat Credit on Construction Services: The appellant, Mitsuba Sical India Ltd., contested the denial of Cenvat credit for construction services availed during 2008-09, which were used for constructing their manufacturing premises. The impugned order relied on CBEC Circular No. 98/1/2008-2011, the decision of the Larger Bench in Vandana Global Ltd. Vs. Commissioner (2018), and the Bombay High Court's decision in Hutchison Max Telecom P. Ltd. (2008). However, the appellant argued that the Larger Bench's decision in Vandana Global Ltd. was set aside by the Chhattisgarh High Court, and similar issues were decided in favor of the assessee in CCE vs. Bellsonica Auto Components India P. Ltd. (2015). The Tribunal found that the impugned order predominantly relied on the Larger Bench's decision in Vandana Global Ltd., which was overturned by the Chhattisgarh High Court. The High Court formulated substantial questions of law, including whether "capital goods" exclude structures embedded to earth and whether goods used in fabricating such structures could be treated as "inputs" for capital goods. The High Court ruled that amendments to the CENVAT Credit Rules in 2009 were not retrospective and could not be applied to periods before their commencement. The Tribunal also referenced the Gujarat High Court's decision in Mundra Ports & Special Economic Zone Ltd. (2015) and the Madras High Court's decision in M/s. Thiruarooran Sugars (2017), both of which held that the 2009 amendment was not clarificatory and could only operate prospectively. The Tribunal concluded that the appellant's case was covered by the decision in Bellsonica Auto Components India P. Ltd., where it was held that services used for setting up a factory fall under the definition of "input service" as per Rule 2(l) of the CENVAT Credit Rules. The Tribunal emphasized that the inclusive definition of "input service" covers services used in relation to the setting up of a factory, and the amendment in 2011, which excluded construction services, was not retrospective. 2. Imposition of Penalty: The department contended that the services were not eligible for Cenvat credit, leading to a show-cause notice for recovery of the credit along with interest and imposition of a penalty. The Commissioner had confirmed the demand and imposed the penalty, arguing that the services used were not directly or indirectly related to the manufacture of the final product and that immovable property is neither service nor goods. However, the Tribunal disagreed, citing the Bombay High Court's judgment in Coca Cola India Pvt. Ltd. (2009), which interpreted the definition of "input service" to include services used directly or indirectly in relation to the manufacture of final products and the setting up of a factory. The Tribunal found that the services in question were indeed used in relation to the manufacture of the final product and thus qualified for Cenvat credit. Conclusion: The Tribunal set aside the demand for Cenvat credit and the imposition of a penalty, allowing the appeal in favor of the appellant. The judgment emphasized that the services used for setting up the factory were covered under the definition of "input service" before the 2011 amendment, which was not retrospective. Consequently, the appeal was allowed, and the demand and penalty were dismissed.
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