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TMI Blog2024 (5) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... ible to Excise Duty payment when they are cleared from their factory. They have taken the Cenvat Credit on various input services which have been used before they commenced the manufacturing activities. The issue is no more res-integra. This Bench in the case of Texmaco UGL Rail (P) Ltd, [ 2019 (7) TMI 1651 - CESTAT KOLKATA ] has held ' the amendments have been made in the definition of input services effective from 1 stApril, 2011 to specifically exclude input services in forms of works contract or construction services used in relation to building or civil structure or part thereof. It also excludes similar services used for laying of foundation or making of structure for support of capital goods. Thus, the intention of legislature wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use Notice on the ground that with effect from 01/04/2011 Rule 2 (l) of CCR, 2004 was amended and the word setting up was removed because of which Cenvat Credit cannot be taken for the services used towards setting up of the factories. After due process, the demand of Rs. 30,50,637/- was confirmed by the lower authorities. Being aggrieved, the Appellant is before the Tribunal. 2. The Learned Counsel appearing on behalf of the Appellant submits that these are essential services utilized by the Appellant when they were in the process of starting their manufacturing activities. Without usage of these services in their factory, the manufacturing activities would not have come into existence. There is no dispute that on the end product emerging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yet to commence the manufacturing activities as could be easily seen from the ER-1 Returns. Therefore, He submits that in the absence of suppression on their part, the Department was in error in invoking the extended period. Accordingly, he submits that the confirmed demand may be set aside on account of limitation also. 4. The Learned AR reiterates the finding of the lower authorities. 5. Heard both sides and perused the Appeal papers, documentary evidence placed before me and the cited case laws. 6. I find that there is no dispute that the Appellant is manufacturing goods which were exigible to Excise Duty payment when they are cleared from their factory. They have taken the Cenvat Credit on various input services which have been used bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices used for laying of foundation or making of structure for support of capital goods. Thus, the intention of legislature was to restrict input tax credits on above services, which are used during factory set up and hence the term setting up was removed from the earlier definition having specific exclusion clause in the new definition. [ Emphasis supplied ] 8. Hyderabad Bench in the case of Pepsico India Holdings (Pvt.) Ltd. cited supra has held as under:- 22. All four of the above qualify as input service as per Rule 2(l)(ii) as applicable post 1-4-2011. Although setting up the factory is not manufacture in itself, it is an activity directly in relation to manufacture. Without setting up the factory, there cannot be any manufacture. Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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