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TMI Blog2023 (5) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... such credit is not at all admissible. This conclusion, at the very threshold by the Assessing Officer is on a wrong noting of the provision or in other words a wrong understanding of the statutory provision - the initial mistake committed by the Assessing Officer while issuing the show cause notice has perpetrated in the order of adjudication by carrying the mistake along with it. Thus, considering this fact, the Tribunal, rightly held that the revenue has not denied that the Cove Oven Plant of the appellant was towards modernisation and renovation of the existing plant/factory. If such is the case, the claim of the assessee would clearly fall within the definition of input service as defined under Section 2(l) which was prevalent from the period from 1.4.2011 to 30.6.2017. Appellant took great pain to distinguish the decisions relied upon by the learned Tribunal. It is opined that the manner in which the decision has to be read is as a whole to enable the Court to carry out as to what is the ratio decidendi. This is the cardinal and basic principle of culling out the legal principle in any decision. In the case of M/s. Reliance Industries vs. CCE ST, Rajkot [ 2022 (4) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final order dated 4th August, 2022 passed by the Customs, Excise and Service Tax Appellate Tribunal, Kolkata (the Tribunal ) in Excise Appeal No.76215 of 2016. The revenue has raised the following substantial questions of law for consideration: (i) Whether the Learned Tribunal has committed gross error of law by not fully appreciating the definition of input service as defined under Rule 2(l) of Cenvat Credit Rules, 2004 and the applicability of the same in the facts and circumstances of the instant case? (ii) Whether the Learned Tribunal is right and justified in allowing the Cenvat Credit on the Works Contract Services in so far as they are used for laying of foundation or making of structure for support of capital goods which are excluded from the definition of input service as defined in Rule 2(l) of Cenvat Credit Rules? (iii) Whether the order of the Learned Tribunal is perverse and contrary of law inasmuch as the Learned Tribunal has failed to appreciate that in terms of provision of Rule 2(l) of the Cenvat Credit Rules, 2004 services provided under Works Contract Service have been straightwy excluded from the ambit of input service , hence, the availment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of determination of the applicable rate of duty or to the determination of the value of the goods for the purposes of assessment or duty. This is a sine qua non for the admission of the appeal before this Court under Section 130E(b) of the Act. (ii) This question raised must involve a substantial question of law which has not been answered or, on which there is a conflict of decisions necessitating a resolution. (iii) If the Tribunal, on consideration of the material and relevant facts, had arrived at a conclusion which is a possible conclusion, the same must be allowed to rest even if this Court is inclined to take another view of the matter. (iv) The Tribunal had acted in gross violation of the procedure or principles of natural justice occasioning a failure of justice. Sub-paragraph (ii) and (iii) of paragraph 9 of the above decision, in the case of Steel Authority of India Ltd. will be applicable to the cases before the High Court. The appeal presently filed by the revenue under Section 35G is also identically worded and what is required to be seen by this Court is as to whether the question raised involves any substantial question of law which has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailment of such credit is not at all admissible. This conclusion, at the very threshold by the Assessing Officer is on a wrong noting of the provision or in other words a wrong understanding of the statutory provision. Be that as it may, the assessee had submitted their reply and the case was adjudicated. Interestingly, when the case was adjudicated the scope of adjudication took a different turn and the Assessing Officer has gone into certain documents to arrived at a conclusion with regard to the scope of work. In fact, the said finding rendered by the adjudicating authority was squarely beyond the allegation in the show cause notice because there has been no annexures to the show cause notice except computation of the alleged excess availment of Cenvat Credit. Thus, the initial mistake committed by the Assessing Officer while issuing the show cause notice has perpetrated in the order of adjudication by carrying the mistake along with it. Thus, considering this fact, the Tribunal, in our view, rightly held that the revenue has not denied that the Cove Oven Plant of the appellant was towards modernisation and renovation of the existing plant/factory. If such is the case, the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess in the mines also satisfies the definition of input service. Moreover, since the credit has been allowed by the Department on certain invoices raised by the Contractor, the Department has in-principle found the service to be eligible for credit. We also agree with the submission made by the appellant that the mode of valuation adopted by the Contractor to discharge service tax on 40% of the contract value is in accordance with law contained in Service Tax Valuation rules and cannot be disputed while deciding credit eligibility at the appellant s end. When service tax has been levied only on 40% of the total value, it essentially means that service tax has been paid only on the service portion. On a reading of the above paragraph, it will clearly show that the decision can be clearly applied to the facts and circumstances of the case. In the said decision it has been held that even though services of construction of building or civil structure are falling under the exclusion clause but even if similar service is used for renovation and modernisation of existing factory, the credit is admissible. The exclusion applies only in respect of such service as specified therein ..... X X X X Extracts X X X X X X X X Extracts X X X X
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