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TMI Blog2021 (1) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... hi were also fully responsible for providing the following. (i). Transaction Strategy (ii). Assistance in preparing information memorandum (iii).Identification and short listing of potential investors/partner (iv). Negotiation on value, structure and terms of transaction and (v). Completion of the transaction. 3. Learned counsel for the appellant further submits that on the completion of the service and based on the service provider‟s advice, the Aluminium extrusion business of BAL was sold to BEPL (Fully owned by YKK Holdings, Japan) on a slump sale/going concern basis; the sale was that of the unit and not that of the shares of the company which is contrary to the findings of the Learned Adjudicating Authority; as the appellants availed a service which is in the nature of legal and financial services and was availed in relation to the running the factory and manufacturing of final excisable product, though indirectly, they availed credit. 3.1. He submits that since it was a transfer of ownership of the unit, under Rule 10 of the CCR, 2004, BAL sought permission from the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of input services that would fall within the ambit of eligible "input services". The second part of the definition contains specific exclusions of services which cannot be considered as eligible "input services" for the purposes of Rule 2(l) ibid. The inclusive part of the definition therefore sets out only examples of input services which would fall in the genre of eligible "input services". It also includes services "used in relation to such activities". "Financing" finds a mention in the list of examples given in Rule 2(l). The type and nature of service provided by M/s. MAPE would definitely be services used in relation to financing and financial management of the appellant. This being the case, and considering that financial consultancy/advice is not disbarred otherwise in any of the exclusions in Rule 2(l) ibid, the eligibility of said input services should not be in question. In the circumstances, I am of the considered opinion that the disputed services availed by appellant from M/s. MAPE involving credit amount of Rs. 19,46,527/- for the period October, 2011 to September, 2012 are very much eligible "input services" for the purpose of Rule 2(l) ibid. Appeal is therefore r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssues covered in those cases are not similar to the ones involved in the present case; most of the cases pertain to the period prior to 01/04/2011, when "activities relating to business" were included; it was deleted from 1.4.2011; hence, ratio cannot be made applicable for the present case. * Imposition of penalty under Section 11AC is justified in para 38 of the OIO. * Hon‟ble High Court has upheld the denial of irregularly availed Cenvat credit and imposition of penalty on account of such irregularly availed credit in the case of Bajaj Hindustan Ltd Vs Union of India, reported in 2013(3) TMI 365 - ALL) 7. Heard both sides and perused the records of the case. The brief issue which requires the Bench‟s attention in this case is to see whether the services availed by the appellants from M/s. Singhi Advisors Pvt. Ltd. Mumbai would amount to input services to be eligible for credit. We find that it would be beneficial to look at the statutory provisions defining the input service. Rule 2(l) of Cenvat Credit Rules, 2004 defines input service as follows: - 2(l) "input service" means any service, - (i) used by a provider of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dutiable goods on commission basis. 8. On-going through the above provisions, it is seen that the above definition has two parts, one the substantive part and the other the inclusive part. Commissioner finds that the services covered under the inclusive part of the definition of input service or services are which are rendered prior to the commencement of the manufacturing activity (such as, services for modernization, renovation or repairs of the factory) as well as services rendered after the manufacture of final products (such as advertisement, sales promotion, market research etc.) and includes services received such as accounting, auditing, financing etc. In other words, the definition of input services covers not only services, which are directly or indirectly used in or in relation to the manufacture of final products but also includes various services used in relation to the manufacture of final products, be it prior to the manufacture of final products or after manufacture of final products. Having found so, the Commissioner follows his finding by making averment that if the service is not integrally connected with the manufacture of final products, the serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lencompassing definition. Input service is defined to be any service used by the 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. The intent of the appellant as seen from the correspondence available on record is not to wind up the company. The intent was very clear to sell or transfer the business, obviously the manufacturing activity, to any person or company who would manage the manufacturing activity i.e., to produce and sell the goods. Therefore, in a wider perspective the efforts of the appellants were in the direction of continuation of manufacture of final products and their removal from the factory. Therefore, we find that the services availed by the appellants are covered by the substantive definition of input service as enshrined in Rule 2(l) of CCR, 2004. The inclusive definition gives certain illustrations and explains and expands the scope of the definition given in the substantive portion of the definition. It is incorrect and legally not tenable to say that if the service is not covered in the inclusive definition, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services should not be in question. In the circumstances, I am of the considered opinion that the disputed services availed by appellant from M/s. MAPE involving credit amount of Rs. 19,46,527/- for the period October, 2011 to September, 2012 are very much eligible "input services" for the purpose of Rule 2(l) ibid. Appeal is therefore required to be allowed, which I hereby do. 11. In view of the above discussion and case laws submitted by the appellant, we find that the definition of input service is wide and that the appellants are in their right to avail the impugned credit. We also find that the appellants have submitted that the said credit was not allowed to be transferred to the new unit in terms of Rule 10 of CCR 2004; they have not utilised the credit and even then, the department has issued demand notice for payment back of credit which is not legally sustainable. They have also pleaded that imposition of penalty was also not tenable. As we hold that the credit is admissible to the appellants, we find that other issues raised by the appellants do not require any consideration. 12. In view of the above, the appeal is allowed with consequential r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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