2013 (10) TMI 1270 - AT - Service Tax

CENVAT Credit inputs used to provide output services - Waiver of Pre-deposit - Whether the excise duty paid on cement, angles, channels, CTD bars or TMT bar are eligible to enjoy Cenvat credit to provide the output service of erection, installation and commissioning by the appellant. Held that - CCE, Visakhapatnam - II vs. Sai Sahmita Storages (P) Ltd. 2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT - All these goods were used to provide output service for which those are eligible to get Cenvat credit of the excise duty paid - Just because the Coke Oven Battery was installed on the foundation made using the above goods and that resulted in civil structure that does not disentitle the appellant to the Cenvat credit - the law existing prior to amendment, prima facie, it appears that calling for pre-deposit is unwarranted at this stage before hearing appeal in detail Stay granted.

Summary

Issues:
Whether excise duty paid on certain goods can be eligible for Cenvat credit for providing output services of erection, installation, and commissioning.

Analysis:
The appeal in question revolves around the eligibility of excise duty paid on cement, angles, channels, CTD bars, or TMT bars for Cenvat credit to provide output services of erection, installation, and commissioning. The appellant argues that these goods were used to provide output services and hence should be eligible for Cenvat credit. Citing a decision of the Hon'ble High Court of Andhra Pradesh, the appellant contends that the creation of a civil structure, such as a Coke Oven Battery foundation, should not disentitle them from claiming Cenvat credit.

On the other hand, the Revenue argues that using the aforementioned goods to create a civil structure for installing the Coke Oven Battery, resulting in immovable property, should render the Cenvat credit claim ineligible. They rely on a decision in the case of Vandana Global Ltd. vs. CCE, Raipur to support their contention that the creation of immovable property disqualifies the Cenvat credit claim.

It is acknowledged that the output service provided was indeed erection, installation, and commissioning, and the use of the goods in question contributed to the creation of a civil structure constituting immovable property. The civil structure's foundation served as the base for the installation of the Coke Oven Battery, thus linking the provision of erection, commissioning, and installation services with the creation of the immovable property.

Regarding the amendment in the definition of the term "input" effective from 01/4/11, excluding the above-mentioned items from enjoying Cenvat credit, it is noted that the periods involved in all three show cause notices precede this amendment. The learned Counsel argues that the amendment does not apply to the periods in question.

Considering the observations of the Hon'ble High Court of Andhra Pradesh and the legal framework existing before the amendment, it is prima facie concluded that requiring a pre-deposit at this stage before a detailed appeal hearing is unwarranted. As a result, the stay application is allowed, and there is a waiver of pre-deposit until 31st January 2014 or the disposal of the appeal, whichever comes earlier.