2023 (12) TMI 117 - AT - Central Excise

CENVAT Credit - Business Support Services - Mining Services - nexus with output services. Whether the Appellant is eligible to avail CENVAT Credit of Business Support Services received by them from ABMCPL (group company) for the period from April 2006 to March 2016? - HELD THAT - The issue is no longer res integra as the same issue has been decided by this Tribunal in Appellant's own case, M/S. HINDALCO INDUSTRIES LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA-II 2023 (6) TMI 457 - CESTAT KOLKATA where it was held that Appellant is entitled to avail the CENVAT Credit of service tax paid on BSS since they have a nexus with the overall business activity of manufacturing final goods and are essential for the day-to-day operations of the Appellant. In the present case, the department has not challenged the assessment made by ABMCPL in the returns and accepted it. Without challenging the assessment, the department cannot question the Cenvat credit passed on by ABMCPL to the Appellant - the demands confirmed in the impugned orders along with interest and penalty on this count are not sustainable and accordingly, the same is set aside. Whether the Appellant is eligible to avail CENVAT Credit on Mining Services received from Avian Overseas Pvt. Ltd. for the period from April 2006 to June 2011? - HELD THAT - It is observed that the services ancillary to mining of coal in the Appellant s mine was used for generation of electricity at their Captive Power Plant located in their factory at Hirakud, Sambalpur, Orissa. The said electricity is supplied to their manufacturing unit for use in manufacture of dutiable goods. Thus, the services have intricate nexus with manufacturing of dutiable goods. In the case of India Cements Ltd. v. CCE, Guntur 2016 (8) TMI 846 - CESTAT HYDERABAD , the tribunal has held that the input services used in captive mines are available as credit - In the case of Vikram Cement v. CCE, Indore 2006 (2) TMI 1 - SUPREME COURT , the Hon'ble Supreme Court has held that capital goods and inputs used in captive mines available as credit to the manufacturing unit. Thus, the Appellant is eligible for the Cenvat credit of the input services received and used in the captive mines as the said services were used in mining of coal which was used for generation of electricity at their Captive Power Plant and the electricity was used in the manufacturing unit for manufacture of dutiable goods. Thus, there is a clear nexus between the input services on which Cenvat credit was availed and the manufacturing activity undertaken by the Appellant. Thus, the impugned order demanding reversal of such credit along with interest and penalty is not sustainable. Regarding the grounds taken by the adjudicating authority to confirm the demands in the impugned order, it is observed that the adjudicating authority has observed that AOPL was providing site formation services and not mining services . Hence, it has no nexus with the manufacturing process of excisable goods - The adjudicating authority has also observed that AOPL issued the invoices on the Appellant s mines and not the factory address/ registered premise. On these ground the credit availed by the Appellant was denied. It is observed that even if such invoices were addressed to the mines, the Cenvat credit ought not be denied thereon on account of such procedural infirmities, in the absence of any dispute as to usage of such services by the Appellant. Accordingly, the Cenvat credit cannot be denied on this ground. The umpugned order is set aside - appeal allowed.

Summary

Issues Involved:
1. Eligibility of the Appellant to avail CENVAT Credit of Business Support Services received from ABMCPL for the period from April 2006 to March 2016.
2. Eligibility of the Appellant to avail CENVAT Credit on Mining Services received from Avian Overseas Pvt. Ltd. for the period from April 2006 to June 2011.

Summary:

Issue 1: Eligibility to avail CENVAT Credit of Business Support Services from ABMCPL

The Tribunal examined whether the Appellant could avail CENVAT Credit for Business Support Services provided by ABMCPL. The Appellant argued that ABMCPL provided common infrastructural facilities to group companies, including human resource, IT, business strategies, marketing, legal support, accounting, and training. These services were apportioned among group companies, and service tax was paid on these invoices, which the Appellant claimed as CENVAT credit.

The Tribunal referred to its previous decision in Hindalco Industries Ltd. v. CCE, Kolkata-II, which established that services provided by ABMCPL qualify as Business Support Services under Section 65(104c) of the Finance Act, 1994. It was noted that these services have a nexus with the manufacturing of goods by the Appellant and qualify as 'input services.' The Tribunal concluded that the service tax paid by ABMCPL was rightly distributed to the group companies, including the Appellant, and that CENVAT credit should not be denied when the service tax paid by the service provider is undisputed. Consequently, the demands confirmed in the impugned orders were set aside.

Issue 2: Eligibility to avail CENVAT Credit on Mining Services from Avian Overseas Pvt. Ltd.

The Tribunal considered whether the Appellant could avail CENVAT Credit on mining services received from Avian Overseas Pvt. Ltd. The Appellant contended that these services were used in their captive mines for generating electricity, which was then used in the manufacturing of dutiable goods. The Tribunal observed that the services had an intricate nexus with the manufacturing process and cited several decisions supporting the eligibility of input services used in captive mines for CENVAT credit.

The adjudicating authority's findings that Avian Overseas Pvt. Ltd. provided 'site formation services' and not 'mining services' were deemed irrelevant by the Tribunal. It was held that the classification of services does not affect the eligibility for CENVAT credit as long as the services are used in the manufacturing process. The Tribunal also dismissed the objection regarding invoices addressed to the mines instead of the factory, stating that procedural infirmities should not lead to denial of credit if the usage of services is undisputed. Consequently, the demands for reversal of credit along with interest and penalty were set aside.

Conclusion:

The Tribunal allowed the appeals filed by the Appellant, setting aside the impugned orders and confirming the Appellant's eligibility for CENVAT Credit on both Business Support Services from ABMCPL and Mining Services from Avian Overseas Pvt. Ltd.