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TMI Blog2021 (4) TMI 1158X X X X Extracts X X X X X X X X Extracts X X X X ..... godown / warehouse where the input is stored is outside the factory premises and the appellant have not obtained the permission under Rule 8 of Cenvat Credit Rules, 2004. Since, the above reasoning is not flowing from the show cause notice even without going into the legality of the above two issues, the orders of the both the authorities does not sustain, for the reason that any issue which were not raised in the show cause notice, cannot be imported into the adjudication order or Commissioner (Appeals) order. Nexus with manufacturing activity - HELD THAT:- In the present case there is no dispute that the warehouse / godown outside the factory premises was taken on rent for storage of input which is meant for production of final product, therefore, there is a direct nexus of warehousing / storage service with the manufacturing activity of the appellant. Permission under Rule 8 of Cevat Credit Rules, 2004 for storage of inputs outside the factory - HELD THAT:- In the present case, there is no allegation that the appellant have availed the Cenvat Credit in respect of the inputs lying in warehouse outside the factory. Therefore, in the given facts Rule 8 is not applicable, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the rent paid for warehouse / godown used for storing the imported inputs since the warehouse / godown had separated from Central Excise registration and were not registered as a first stage /second stage dealer by the appellant for storage of its goods, out of the total Cenvat Credit on storage and warehousing services which pursuant to the audit report, the appellant deposited ₹ 3,27,392/- along with the interest of ₹ 24,227/- pertaining to the services received from Pioneer Logistics Kilwani, prior to the issuance of the show cause notice. Subsequently, the appellant were issued a show cause notice dated 26.08.2015 proposing to demand and recover the ineligible Cenvat Credit of Service Tax paid on the renting of warehouse / godown along with applicable interest and penalty. The said show cause notice was adjudicated vide Order-In-Original dated 29.12.2015 wherein the Learned adjudicating authority confirmed the entire demand of ineligible Cenvat Credit of ₹ 2,29,992/- and appropriated amount of ₹ 3,27,392/- paid by the appellant along with interest under Rule 14 of the Cenvat Credit Rules read with Section 11A (4) of the Central Excise Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court judgment in the case of Commissioner Of C. Ex., Nagpur Vs. Ballarpur Industries Ltd.- 2007 (215) E.L.T. 489 (S.C.). As regard the issue that if the input service is received out of the factory premises whether the same is eligible for Cenvat Credit. He placed reliance on the Hon ble Bombay High Court judgment in the case of Deepak Fertilizers Petrochemicals Corpn. Ltd. Vs. C.C.Ex., Belapur- 2013 (32) S.T.R. 532 (Bom.) He placed reliance on the following judgments:- Commr. Of C. Ex., Vadodara-Ii Vs. Siemens Healthcare Diagnostics Ltd.- 2014 (36) S.T.R. 192 (Tri. - Ahmd.) Commissioner of Central Excise Vs. Dyenamic Industries Ltd-2014 (35) STR 674 (Guj.). 2.3 He also made submission that the entire demand is time bar in as much as the details of availment of Cenvat Credit and even payment of certain amount of such Cenvat Credit was well within the knowledge of department. In this regard, he placed reliance on the following judgments:- Caprihans India Ltd Vs. Commissioner of Central Excise, Surat-2015 (324) E.L. T 8 (S.C) Commissioner of Central Excise, Mumbai-III Vs. Huhtamaki Ppl Ltd.- 2018 (19) G.S.T.L. 274 (Tri. Mumbai) DCB Bank Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since, the renting of immovable property service is not included in the definition of input service. Accordingly, the said service used by the appellant neither falls under scope definition of input service nor has nexus with manufacturing activity. However, in the adjudication order and order of Commissioner (Appeals) both the authorities have travelled beyond the scope of show cause notice. In as much as the Cenvat credit was denied on the ground that the godown / warehouse where the input is stored is outside the factory premises and the appellant have not obtained the permission under Rule 8 of Cenvat Credit Rules, 2004. Since, the above reasoning is not flowing from the show cause notice even without going into the legality of the above two issues, the orders of the both the authorities does not sustain, for the reason that any issue which were not raised in the show cause notice, cannot be imported into the adjudication order or Commissioner (Appeals) order. Even for academic discussion if I consider that whether for the reason that warehouse /godown are located outside the factory premises and appellant have not obtained the permission under Rule 8, credit can be denied. I f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icals Corpn. Ltd. (Supra) Wherein question NO. (II) was framed as under:- (II) Whether in the facts and circumstances of the case, the Appellate Tribunal was correct and justified in holding that services used in relation to storage of inputs outside the factory will not be eligible for credit as services are received outsider the factory? The above question was answered by the Hon ble Bombay High Court as under:- 5. Now at the outset it must be noted that Rule 3(1) allows a manufacturer of final products to take credit inter alia of Service Tax which is paid on (i) any input or capital goods received in the factory of manufacturer of the final product; and (ii) any input service received by the manufacturer of the final product. The subordinate legislation in the present case makes a distinction between inputs or capital goods on the one hand and input services on the other. Clause (i) above provides that the Service Tax should be paid on any input or capital goods received in the factory of manufacture of the final product. Such a restriction, however, is not imposed in regard to input services since the only stipulation in clause (ii) is that the input services sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x among others paid on any input or capital goods received in the factory of manufacturer of the final product, insofar as any input service is concerned, the only stipulation is that it should be received by the manufacturer of the final product. This must be read with the broad and comprehensive meaning of the expression input service‟ in Rule 2(l).The input services in the present case were used by the appellant whether directly or indirectly, in or in relation to the manufacture of final products. The appellant, it is undisputed, manufactures dutiable final products and the storage and use of ammonia is an intrinsic part of that process. 4.2. The above judgment being on absolutely identical issue directly applicable to the facts of the appellant s case. As regard the issue that whether the Cenvat Credit is admissible on the input service received outside the factory various judgments were passed. In the case of Jubilant Life Sciences (Supra), even though the input service received and consumed by the assessee s research and development center though situated out of the factory premises and providing scientific and Technical Consultancy Services to their own units fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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