2014 (8) TMI 415 - AT - Service Tax

Availment of CENVAT Credit - construction of factory shed services - Revenue contends that service is not a input service - Held that - There is no dispute that the services availed are the construction services used for setting up of factory for manufacture of finished products - From the plain reading of definition of input services during the period of dispute, it is seen that the definition of input service specifically included the services used in relation to setting up, modernisation, renovation or repairs of the factory or an office relating to such factory. In view of clear provisions of Cenvat Credit Rules, 2004 during the period of dispute, we are of prima facie view that the service, in question, was eligible for Cenvat credit and impugned orders does not appear to be correct. In view of this, the requirement of pre-deposit of Cenvat credit demand, interest thereon and penalty is waived for hearing of the appeal and recovery thereof stayed till the disposal of the appeal - Stay granted.

Summary

Issues:
1. Interpretation of the definition of 'input service' under the Cenvat Credit Rules, 2004.
2. Eligibility of construction services for Cenvat credit.
3. Validity of the Show Cause Notice issued by the Department.
4. Adjudication of Cenvat credit demand, interest, and penalty by the Commissioner.
5. Appeal against the Commissioner's order and the stay application.

Analysis:
1. The appellant, engaged in manufacturing fasteners and chain sliders, expanded their manufacturing capacity by setting up another plant for zip fasteners within the same compound. They availed services for construction of the factory shed and other facilities, claiming Cenvat credit of Rs. 2,20,95,424 from 2005-06 to 2010-11. The Department issued a Show Cause Notice challenging the eligibility of these services as 'input services' under the Cenvat Credit Rules.

2. The appellant argued that the services for setting up the manufacturing plant fell within the definition of 'input service' during the disputed period. They relied on a Tribunal case precedent to support their claim. The JCDR opposed the stay application, contending that the services resulted in immovable property not subject to excise duty, thus ineligible for Cenvat credit.

3. The Tribunal examined the definition of 'input service' under Rule 2(l) of the Cenvat Credit Rules, 2004, during the relevant period. The definition included services related to setting up, modernisation, renovation, or repairs of a factory premises or office. Based on this clear provision, the Tribunal held that the services availed by the appellant for setting up the factory were eligible for Cenvat credit.

4. Consequently, the Tribunal found that the impugned order of the Commissioner confirming the Cenvat credit demand and imposing penalties was not correct. The Tribunal waived the requirement of pre-deposit for the appeal and stayed the recovery of Cenvat credit demand, interest, and penalty until the appeal's disposal. The stay application was allowed in favor of the appellant.

5. The Tribunal's decision highlighted the importance of interpreting the definition of 'input service' under the Cenvat Credit Rules, 2004, and ensuring that services related to setting up manufacturing facilities are considered eligible for Cenvat credit. The judgment provided clarity on the applicability of Cenvat credit in such scenarios and upheld the appellant's right to challenge the Department's decision through an appeal process.