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TMI Blog2019 (4) TMI 1969X X X X Extracts X X X X X X X X Extracts X X X X ..... e subsequent period, it is not open to the respondent herein to take a contrary stand - appeal allowed - decided in favor of appellant. - Excise Appeal No. 1680 of 2011 - FINAL ORDER No: A/87634/2019 - Dated:- 18-4-2019 - Mr C J Mathew, Member (Technical) and Dr. Suvendu Kumar Pati, Member (Judicial) Shri M.H. Patil, Advocate for the appellant Shri Ajay Kumar, Addl. Comm (AR) for the respondent ORDER This appeal of M/s Mahanagar Gas Ltd, arising from order-inoriginal no. 02/Commr/M-II/2011 dated 29th September 2011 of Commissioner of Central Excise, Mumbai-II, challenges the finding of ineligibility to credit of ₹ 99,74,816, availed between 2005-06 and 2009-10, on tax paid for procurement of services used in laying of pipelines intended for distribution of compressed natural gas (CNG) and piped natural gas (PNG) with consequent recovery thereon under section 11A of Central Excise Act, 1944, along with appropriate interest under section 11AB of Central Excise Act, 1944, and imposition of penalty of like amount under section 11AC of Central Excise Act, 1994. 2. According to Learned Counsel for appellant, the output in question are products of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal in Reliance Gas Transportation Infrastructure Ltd v. Commissioner of Service Tax, Mumbai-II [2016 (45) STR 286 (Tri-Mumbai)] in which, though the demand pertains to eligibility of credit on input services availed for pipelines prior to and after commissioning, it has recorded that the original authority had held the availment of services after commissioning to be admissible. He contends that the decisions in Maharashtra Seamless Ltd v. Commissioner of Central Excise, Raigad [2012 (25) STR 167 (Tri-Mumbai)] and in Endurance Technologies P Ltd v. Commissioner of Central Excise, Aurangabad [2012 (27) STR 320 (Tri-Mumbai)], holding that the utilisation of services within the factory of manufacture is not mandated by CENVAT Credit Rules, 2004, invalidates the allegation in the notice that the usage outside the factory premises does not fall within the ambit of rule 2 (l) of CENVAT Credit Rules, 2004. 4. Learned Authorised Representative contends that the premises at which the dispensing and filling occurs are not registered under Central Excise Rules, 2002 and, therefore, cannot be considered as part of the factory. He drew attention to the finding in the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Excise Customs and notification no. 1/2006-ST dated 1st March 2006 to buttress his argument of non-eligibility. Further, according to him, the pipelines were laid for effecting outward transportation in which the qualifications laid down by the Hon ble High Court of Karnataka in Commissioner of Central Excise Service Tax, LTU, Bangalore v. ABB Ltd [2011 (33) STR 97 (Kar)] should be the test for determining eligibility. He further contends that the argument advanced of manufacturing at the place of distribution did not find acceptance of the Tribunal in Mahanagar Gas Ltd v. Commissioner of Central Excise, Mumbai-II [2016-TIOL-497-CESTAT-MUM] and, hence, the contention of eligibility of input services for availment till the place of distribution is negated. 5. In re Reliance Gas Transportation Infrastructure Ltd, the Tribunal framed the issue in appeal as 5. The notice issued to the appellant sought to deny the credit availed by it on the services rendered by the pipeline laying contractor only on the ground that the said input services resulted in the creation of an immovable property. Insofar as credit on the services rendered by the other service providers, i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r comprehension as to how the appellant could have rendered its output service without availing of the services of the pipeline laying contractors. The said services in our view are clearly eligible to credit by virtue of the main limb of the definition of input services. 12. Even otherwise the inclusive limb of the definition also specifically covers services used in relation to setting up, modernization or repair of a factory, premises of a provider of output service or an office relating to such factory or premises. It is not in dispute that the services used for laying of the pipeline were used for setting up the premises of the provider of output service. What is being contended by the Revenue is that the credit of the input services used for setting up was not admissible as the premises that were set up, were an immovable property. We do not find any merit in the contention of the Revenue that credit would be admissible only in respect of such factory/premises that are not immovable. This artificial division and distinction which the Revenue seeks to introduce in the definition of input service is clearly baseless and contrary to the plain language used in the definiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also specifically includes the services used in relation to setting up of a factory. Mr. Amrinder Singh rightly contended that it was not the Appellant s case that the services were not used for the setting up of the factory. The doubt in this regard is set at rest by the second part of Section 2(l)(ii) which includes within the ambit of the words input service the setting up of a factory and the premises of the provider of the output service. The inclusive definition, therefore, puts the matter, at least so far as the payment for services rendered by the civil contractor for setting up the factory is concerned, beyond doubt. As the plain language of Section 2(l)(ii) indicates, the services mentioned therein are only illustrative. The words includes services establish the same. It can hardly be suggested that the lease rental is not for the use of the land in relation to the manufacture of the final product. xx 17. The other decision which the ld. Counsel of the Revenue relied upon was that the Larger Bench of the Tribunal in the case of Tower Vision India Pvt. Ltd. v. CCE - 2016 TIOL 539 CESTAT-DEL-LB. The said judgment also was dealing with the dispute with res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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