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TMI Blog2018 (1) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... missible even after specific exclusion that have been provided in the amended definition of input services relating to works contract service/ construction services. Extended period of limitation - Held that: - There is no doubt that the issue involved in the present case is a pure question of interpretation of law and the appellant had availed credit only on the aforesaid input services and not on construction services; after disclosing all the facts in their books of accounts - extended period cannot be invoked. Appeal allowed - decided in favor of appellant. - E/11756/2015-SM - A/10021/2018 - Dated:- 4-1-2018 - Dr. D. M. Misra, Member (Judicial) For Appellant: Mr. Saurabh Dixit Mr. J. B. Desai (Advocate) For Respondent: Mr. S.N. Gohil (A.R.) ORDER Per : Dr. D. M. Misra This is an appeal filed against order-in-appeal No.VAD-EXCUS-001-APP-180/2015 passed by Commissioner (Appeals) Central Excise, Customs and Service Tax- Vadodara. Briefly stated the facts of the case are that the appellant had availed cenvat credit amounting to ₹ 15,99,633/- during the period October 2012 to March 2013 on various input services namely, Manpower Services, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial pronouncements on the disputed services, the Ld. Advocate submitted that in various judgments of this Tribunal, the said services are held to be eligible to cenvat credit. Further, he has submitted that the issue related to interpretation of relevant Provisions and there was no intention whatsoever to evade payment of duty by availing inadmissible credit, therefore, extended period of limitation cannot be held applicable to the facts of the present case. 3. Per contra, Ld. AR for the Revenue, on the other hand has submitted that word setting up means the assembly and arrangement of the tools and apparatus required for the performance of an operation; this interpretation has been consciously deleted by the Government from the scope of input services w.e.f. 01.04.2011. It is his contention that in the amended Rule 2(l) of the Cenvat Credit Rules, the expression activities related to business has also been deleted. He has further submitted in the amended Rule, it is made clear that services used in relation to modernization, renovation or repairs of a factory premises of provider of output services or an office relating to such factory or premises are eligible to credit. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services per se are eligible to credit before and after the amendment to the definition of input services, even if used for setting up of the factory, would be admissible to credit. It is their argument that to make the provision more clear and bringing parity on the provisions related to goods and service tax, only construction services and other related services like works contract service, architect service etc., used for construction/ settingup of new factory have been disallowed after the amendment to the said definition. To appreciate the rival contentions the definition of input service before and after amendment is reproduced below: Before 01.4.2011: 2(l) Input Services means any service, - (i) used by a provider of taxable service for providing an output service; or (ii) used by a manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal, and includes services used in relation to setting up, modernisation, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) such as those provided in relation to outdoor catering, beauty treatment, health services, cosmetic and plastic surgery, membership of a club, health and fitness centre, life insurance, health insurance and travel benefits extended to employees on vacation such as Leave or Home Travel Concession, when such services are used primarily for personal use or consumption of any employee; 6. A plain reading of the amended provision reveals that the expression setting up and activities relating to business have been deleted from the scope of the meaning of input service.The scope of the definition of input service has been interpreted by the Hon ble Bombay High Court in Coca Cola (India) Pvt. Ltd. Vs CCE Pune - 2009 (242) ELT 168 (Bom.), their Lordships observed as follows: 39. The definition of input service which has been reproduced earlier, can be effectively divided into the following five categories, in so far as a manufacturer is concerned : (i) Any service used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products (ii) Any service used by the manufacturer whether directly or indirectly, in or in rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpressed by this Tribunal in the case of Ion Exchange (I) Ltd. Vs. CCE, Surat-II vide Order No.A/13513/2017 dt. 08.11.2017. Therefore, the claim of the advocate that only construction services used in setting up of factory has been excluded in the amended definition of input service and all other input services,even though used in the setting up of a factory, would continue to be admissible, in my opinion cannot be sustained.In these circumstances, I do not find any valid reason to hold thatcenvat credit availed on various services used for setting up of industry other than construction services would be admissible to credit.However, I find force in the contention of the Ld. Advocate for the appellant on the issue of limitation. There is no doubt that the issue involved in the present case is a pure question of interpretation of law and the appellant had availed credit only on the aforesaid input services and not on construction services; after disclosing all the facts in their books of accounts. Besides, they have submitted all relevant documents for the purpose of Audit of their Unit on 18.12.2013 and the Audit was conducted in Jan 2014, hence there is no suppression of facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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