2021 (7) TMI 661 - AT - Service Tax

Refund claim of input service tax credit - input service or not - Erection, Commissioning Installation Services - denial of refund on the ground that the definition of input service exclude service portion in executing of works contract service, including services listed under clause (b) of Section 66E of Finance Act, 1994, insofar as used for construction of executing of works contract services of building of civil structure or part thereof - HELD THAT - The Commissioner(Appeals) has not properly appreciated the definition of input service as provided in Rule 2(l) of CENVAT Credit Rules, 2004. On perusal of definition of 'input service', it is found that the credit which has been excluded from the definition of input service under clause 2(A) are (a) construction or execution of works contract of a building or a civil structure or a part thereof; or (b) laying of foundation or making of structures for support of capital goods, except for the provision of one or more of the specified services. Construction or execution of works contract of a building or civil work only means service towards the construction of a new building especially civil structure work of the building or laying of foundation work for such building for support of capital goods whereas in the present case the nature of services so availed by the appellant was towards electrical works and modernisation of premises and it was not getting a new building constructed. It is found that the circular No.943/4/2011-CX dt. 29/4/2011 provides that if the input services used for repair or renovation of the factory or the office, then cenvat credit is allowed and is covered by the definition of input service. Further it is found that since the appellants are engaged in export of software services wherein the human resource and infrastructure facility is availed in order to provide export of service and the services in dispute in the present case was essential for rendering export of service. In the case of M/S MUSADDILAL PROJECTS LTD. VERSUS CCE, C ST, HYDERABAD-I 2017 (4) TMI 951 - CESTAT HYDERABAD an identical issue was considered and in para 15, the Tribunal has held that modernisation and renovation of the premises fall in the definition of input service - Similarly in the case of M/S MAHINDRA MAHINDRA LTD. VERSUS CCE, HYDERABAD - I 2016 (6) TMI 1000 - CESTAT HYDERABAD , the Tribunal has held input service includes services rendered in relation to modernisation, renovation and repair of the factory and offices. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund of input service tax credit for services used for export under Notification No.27/2012-CE, whether services used for modernization of premises constitute construction services, eligibility of credit in refund proceedings.

Analysis:
1. The appeal challenged the Commissioner(Appeals) order rejecting a refund claim of input service tax credit for services used for export under Notification No.27/2012-CE. The Department contested the refund on the grounds that services like Erection, Commissioning & Installation were construction services not linked to the output services provided by the appellant. The Commissioner(Appeals) upheld the Department's appeal citing exclusion of service portion in works contract services from the definition of input service. The appellant argued that the impugned order exceeded the scope of the show-cause notice and failed to consider binding judicial precedents on the issue.

2. The appellant contended that the impugned order did not consider the nature of services like installation of air conditioning, electrical works, fire-fighting systems, etc., essential for modernization of premises but wrongly treated as construction services. They argued that the order relied on invoice nomenclature without assessing the actual nature of the services. The appellant emphasized that Notification No.27/2012 does not require a nexus between input service tax credit and the exported service, citing various decisions in their favor.

3. The Tribunal analyzed the definition of input service under Rule 2(l) of CENVAT Credit Rules, 2004. The exclusion under clause 2(A) pertains to construction or execution of works contract of a building or civil structure, which does not apply to services aimed at modernization of premises. Circular No.943/4/2011-CX allows credit for services used in repair or renovation of factory or office, falling under the definition of input service. The Tribunal noted that the disputed services were essential for providing export of software services, and previous decisions supported the eligibility of credit for modernization and renovation services.

4. Citing precedents like Musaddilal Projects Ltd. Vs. CCE and Mahindra & Mahindra Ltd. Vs. CCE, the Tribunal concluded that services related to modernization, renovation, and repair of premises constitute input services. Therefore, the impugned order was deemed unsustainable, and the appeal of the appellant was allowed with consequential relief as per law.