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TMI Blog2023 (1) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... al in the case of Semco Electricals Private Limited [ 2009 (12) TMI 143 - CESTAT, MUMBAI ] has held that in order to qualify as an input service, the service has to either fall within the means part or inclusive part of the definition of input service. Thus, any service which is covered under the means part of the definition, the credit cannot be denied even if, it does not appear in the inclusive part of the definition - without use of these services, the appellant could not have possibly manufactured the excisable goods. In this background, we do not find any merit in the argument of the Revenue that by deletion of word setting up from the definition of input service any significant change has happened. However, w.e.f. 01.04.2012, a specific exclusion clause has been introduced in the definition of input service - the exclusion clause would obviously make such services ineligible for the cenvat credit under the head of Input Service . It is seen that the appellant has claimed that they have on their own not availed such credits relating to the exclusion clause. Denial of cenvat credit invoking Rule 4(7) of the Cenvat Credit Rules - HELD THAT:- It is apparent that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: Before 01.04.2011: 2(l) input service means any service,- (i) used by a provider of taxable service for providing an output service, or (ii) 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, and includes services used in relation to setting up, modernization, renovation or repairs of a factory,.......... upto the place of removal: After 01.04.2011 and as amended 2(l) input service 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 modemization, renovation or repairs of a factory...... outward transportation upto the place of removal; After the issuance of Notification no. 28/2012-C.E. (NT) dated 20.06.2012. RULE 2(l): Input Services Input Service means any service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18,523 4A 2. Business support service -Refrigerator, freeze service charge -Waste disposal Boiler erection charges. - Low site material unloading storage. - Installation of diesel generator package. 2,91,03,030 4B 3. Erection Commissioning service - Installation Commission of pipes, fittings, diesel generator sets and off-GAS VAR system. -Structural Fabrication, Equipment installation, piping insulation painting charges. - Manpower for mechanical works -Dismantling/repairs/painting of boiler. -AMC charges for voltas make chiller. 1,29,85,736 4C 4. Clearing Forwarding Service Clearing Forwarding agent Services 1,27,94,777 4D 5. Repair Maintenance Service -Container unloading, wooden packaging. - AMC charges Wast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erminal Charges 7,65,215 4P 17. Security Service Security services at project sites and plants 7,60,293 4Q 18. Architect Engineering Design Installation of Galvanized Iron, Hydro jetting and Mobilization charge. 6,93,641 4R 19. Rent Site office, Monsoon shed DG Set rental charges 2,43,290 4S 20. Inspection Certificate -Survey of machinery with inspection of PL. -Mapping Calibration 1,54,782 4T 21. Courier Service Courier charges for samples 89,753 4U 22. Event Management Service Plant opening celebration 76,796 4V 23. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... input service. He further argued that the same principle has been relied in the decision of Tribunal in case of Reliance Industries Limited (supra) wherein the credit under Erection Commissioning and Installation Services has been specifically allowed under main definition when the service was clearly received as initial setting up of the plant. 2.2 He further argued that they themselves have not availed cenvat credit of services relating to Civil Construction of the factory. He pointed out that the appellant have taken the construction related services from the service provider, namely, TOYO Engineering (India) Limited and Flour Daniel (India) Private Limited and on these services, the appellant have not availed any cenvat credit as these construction services fall under specific exclusion in the definition of Input Service. The appellant attached annexure-3 to the appeal No. E/10169/2019, some sample invoices to support its claim. 2.3 Learned counsel argued that the Show Cause Notice is cryptic and vague. The Show Cause Notice solely relies on the fact of the amendment in the definition of Input Service involving removal of word initial setting up to assert that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed w.e.f. 1.4.2011: i) A service provided by an architect in his professional capacity: or ii) A service provided by a port or any person authorized by the port, in relation to port service; or iii) A service provided by other port or any person authorized by that port in relation to port service; or iv) A service provided by airports authority or any person authorized by it, in an airport or civil enclave; or v) A service provided in relation to construction service; or vi) A service provided in relation to the construction of a complex; and vii) A service provided in relation to the execution of a works contract. 2.7 Learned counsel argued that these changes are only intended to exclude construction relating services for setting up of the factory. He argued that the services on which cenvat credit has been availed by the appellant are only those which are not pertaining to civil construction and therefore, the said services are not covered under the exclusion portion of definition of input service. He argued that they themselves have not availed cenvat credit on such services which are related to civil construction. 2.8 Learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows: (l) input service' means any service, - (i) used by a provider of taxable service for providing an output service; or (ii) 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 and includes services used in relation to setting up , modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage up to the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking. credit rating, share registry, and security, inward transportation of inputs or capital goods and outward transportation up to the place of removal; Certain amendments were made in the said definition and w.e.f. 01.04.2011, the said definition read as follows: (l) input service means any service, - (i) used by a provider of taxable service for providing an output service: or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in relation to modernisation, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation upto the place of removal, but excludes - (A) service portion in the execution of a works contract and construction services including service listed under clause (b) of section 66E of the Finance Act (hereinafter referred as specified services) in so far as they are used for- (a) construction or execution of works contract of a building or a civil structure or a part thereof; or (b) laying of foundation or making of structures for support of capital goods, except for the provision of one or more of the specified services; or (B) specified in sub-clauses (o) and (zzzzj) of clause (105) of section 65 of the Finance Act, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Cenvat Credit Rules, 2004 has two parts - (i) the means‟ part which is the main part of the definition and (ii) inclusive‟ part which is illustrative and certainly not exhaustive. 9.2 The means‟ part of the definition covers any service used directly or indirectly, in or in relation to manufacture of the final products and clearance of the final products from the place of removal. The definition is one of very wide connotation. It covers within its ambit all services received by the manufacturer of final products, as long as they are related to the manufacturing business of the assessee. 9.3 A service would qualify as input service‟ even if not covered by the means‟ portion, if it satisfies the includes‟ portion of the definition. In other words, in order to qualify as an input service, a service has to fall either within the means‟ part or includes‟ part of the said definition. 9.4 It is well settled that every clause of the statute should be construed with reference to the context and other clauses of the Act, as far as possible to make a consistent enactment of the whole of the statute. A bare me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. The amount of Rs. Rs. 29,29,272/- has been denied invoking Rule 4(7) of the Cenvat Credit Rules. The appellant have contended that they have availed the said credit within the period prescribed under Rule 4(7) in their ST-3 Returns and they have claimed that they have produced the said returns before the original adjudicating authority however, no findings have been given by the original adjudicating authority on this defence of the appellant. We find that this issue has been examined in para 4.19 of the impugned order. It is apparent that the defence and documents in support of appellant s claim has not been examined. In view of above, we find that demand on this count cannot be sustained as the order fails to examine the defence given by the appellant. In these circumstances, the demand on this count is set aside and matter is remanded to the original adjudicating authority. 8. On the issue of the credit of input services availed in respect of alleged setting up of the factory as well as the suggestion of the appellant about the credit not availed on account of exclusion clause, the matter needs to be examined again by the original adjudicating authority in light of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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