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TMI Blog2024 (10) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... is conclusion the Revenue has relied upon the provision 11 A and 11 B. These Sections nowhere prescribe about the time limit for availment of the Cenvat credit. Therefore, the borrowing of the provision of Section 11A and 11B is absolutely illegal and incorrect. As regard the amendment in Cenvat Credit Rules, 2004 prescribing the time limit of 1 year, the said amendment was made on 11.07.2014. Since in present case, entire period is up to 31.03.2012, the credit on the time limit cannot be denied. In case of Roquette Roquette Riddhi Siddhi P Ltd vs. C.C.E.-Ahmedabad-II [ 2024 (1) TMI 1210 - CESTAT AHMEDABAD] this Tribunal has held that ' appellants have correctly taken the cenvat credit on 18/09/2014 for the invoices issued prior to 01/09/2014.' Whether the respondent can be denied Cenvat credit of the services which were used at salt pans for manufacturing salt which was the raw material for manufacturing soda ash? - HELD THAT:- There is no dispute that the appellant is engaged in manufacture of salt in their factory for the purpose of manufacturing the soda ash. The appellant used salt which is the main input material. The salt is procured through salt pans which is obviou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Revenue s appeal the issue involved is that whether the respondent can be denied Cenvat Credit of Rs.1,21,08,667/- in respect of services which were used at salt pans for manufacturing salt which was the raw material for manufacturing soda ash. On this issue, the case of the department is that since, the service was used outside the factory premises that is at salt pans which is not part of the manufacturing facility of the assessee, the credit is not admissible. 2. Shri Amal Dave, learned counsel appearing on behalf of the assessee in respect of the credit involved Rs.46,27,417/- submits that during the relevant period, there was no time limit prescribed either of 6 months or 1 year. Therefore, in absence of prescription of any time limit for availing the Cenvat credit, credit availed after 1 year from the date of invoice cannot be denied. He further submits that in this case all the invoices were issued prior to the amendment of the Cenvat Credit Rules, 2004 which prescribed time limit of 1 year. Therefore, even if 1 year period is prescribed, the same is not applicable to the invoices issued prior to the amendment. He submits that the issue has been consistently settl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue has relied upon the provision 11 A and 11 B. These Sections nowhere prescribe about the time limit for availment of the Cenvat credit. Therefore, the borrowing of the provision of Section 11A and 11B is absolutely illegal and incorrect. As regard the amendment in Cenvat Credit Rules, 2004 prescribing the time limit of 1 year, the said amendment was made on 11.07.2014. Since in present case, entire period is up to 31.03.2012, the credit on the time limit cannot be denied. This has been held in number of judgments which are reproduced below:- a) In case of Roquette Riddhi Siddhi P Ltd vs. C.C.E.-Ahmedabad-II this Tribunal has passed the following order:- 4. We have carefully considered the submission made by both the sides and perused the records. We agree with the submission of learned Counsel that all the three issues are squarely covered by various judgments of this Tribunal. 5. As regard the issue A on the fact there is no dispute that all the invoices were issued prior to 18.09.2014. Therefore, the 3 rd Proviso to Rule 4 of Cenvat Credit Rules, 2004 inserted with effect from 18.09.2014 shall not apply in respect of the invoices issued prior to 18.09.2014. Accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already been settled and no more res integra, therefore, we hold that appellants have correctly taken the cenvat credit on 18/09/2014 for the invoices issued prior to 01/09/2014. 7. In view of the above, we do not find any merit in the impugned orders and the same are set aside. In the result, appeals are allowed with consequential relief, if any. b) In the case of Aalidhra Textool Engineers Pvt Ltd (Supra) this Tribunal held as under:- 4. I have considered rival submission. I find that the issue is squarely covered by the decision of Hon ble High Court of Delhi in the case of Global Ceramics Pvt. Ltd., (supra) wherein following has been observed: 17. There is substance in the contention of the Learned Counsel for the Assesses in both the cases that the above amended provision cannot be given retrospective effect. As explained in Eicher Motors Ltd. v. Union of India (supra) the rule of lapse of credit lying with it unutilized on the date of amendment, cannot be applied to the goods manufactured prior to the date of the amendment. This is based on the principle that the right to adjustment of tax on final products accrues to an Assessee on the date when they paid the tax on the raw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Commissioner (supra) and reiterated that the input tax credit could not be denied on the basis of an amendment, which is prospective. The question dealt with by the High Court was whether Section 140A(3)(iv) of the CGST Act, which declined the Cenvat credit in relation to goods purchased prior to one year from the appointed date, could be given retrospective effect. In answering the question in the negative, the Gujarat High Court held as under : 30. To sum up we are of the opinion that the benefit of credit of eligible duties on the purchases made by the first stage dealer as per the then existing CENVAT credit rules was a vested right. By virtue of clause (iv) of Sub-Section (3) of Section 140A such right has been taken away with retrospective effect in relation to goods which were purchased prior to one year from the appointed day. This retrospectivity given to the provision has no rational or reasonable basis for imposition of the condition. The reasons cited in limiting the exercise of rights have no corelation with the advent of GST regime. Same factors, parameters and considerations of in order to co-relate the goods or administrative convenience prevailed even under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tty is used primarily for import of coal which is used in the manufacture of final product, Dredging Service is qualified as input service. It is also a fact that Dredging Service is nothing to do with the customer to whom final product is sold. The service charge of Dredging Service is borne by the appellant only, which stands absorbed in the overall cost of manufacturing of cement. Therefore, it cannot be said that the Dredging Service is used for the removal of final product from place of removal. Also as per Hon ble Bombay High Court judgement in the case of CC Ex., Nagpur vs Ultratech Cement Ltd 2010 (20) STR 577 (Bom.) it was held that if the cost of input service is borne by the assessee and the same stand absorbed in the cost of final product, such services are qualified as input services and accordingly the CENVAT Credit is admissible. Considering the ratio laid down by the Hon ble High Court and the facts of the present case, I am of the considered view that the Dredging Services used by the appellant is an input services, hence, CENVAT Credit is admissible. I also observed that merely because the service was availed outside the factory of the appellant the credit cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4] Question no.1 is main bone of contention between the parties. Even the law on this subject is very well settled by atleast three prominent judgments of our High Court reported in 2010 (20) S.T.R. 589 (Bom.) = 2010-TIOL- 686-HC-MUM-ST in the case of Commissioner of Central Excise, Nagpur Versus Ultratech Cement 2010 (260) E.L.T. 369 (Bom.) 2010-TIOL-745-HCU- ST in the case of Commissioner of Central Excise, Nagpur Versus Ultratech Cement Ltd. And 2013 (32) S.T.R. 532 (Bom.)=2013-TIOL-212-HC-MUM-Cx in the case of Deepak Fertilizers Petrochemicals Corporation Ltd. Versus C.C.Ex.Belapur. The question between the parties is whether the respondent was entitled to credit on management, maintenance or repair services provided on windmills installed by the respondents. The answer lies in interpretation of Rule 2(B) (k), (1) (m), 3 and 4 of CENVAT Credit Rules, 2004. The relevant Rule 2(B) (k), (1), 3 and 4 of CENVAT Credit Rules, 2004 read as under: 2(B)(k) Input means (i) all goods, except light diesel oil, high speed diesel oil and motor spirit, commonly known a petrol, used in or in relation to the manufacture of final products whether directly or indirectly and whether contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excise leviable under [Section 85 of Finance Act, 2005 (18 of 2005)] paid on - (i) any input or capital goods received in the factory of manufacture of final product or premises of the provider of output service on or after the 10th day of September 2004; and [ii] any input service received by the manufacturer of final product or by the provider of output services on or after the 10 th day of September, 2004 Including the said duties, or tax, or cess paid on any input or input service, as the case ay be, used in the manufacture of intermediate products, by a jobworker availing the benefit of exemption specified in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No.214/86 Central Excise, dated the 25 th March, 1986, published in the Gazette of India vide number G.S.R.547(E), dated the 25 th March, 1986, and received by the manufacturer for use in, or in relation to the manufacture of final product on or after the 10 th day of September, 2004. Rule 4 : Conditions for allowing CENVAT credit (1) The CENVAT credit in respect of inputs may be taken immediately on receipt of the inputs in the factory of the manufacturer or in the premises of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice'. Rule 2(1) initially provides that input service means any services of the description falling in subclauses (1) and (II). Rule 2(1) then provides an inclusive definition by enumerating certain specified services. Among those services are services pertaining to the procurement of Inputs and inward transportation of inputs. The Tribunal, proceeded to interpret the inclusive part of the definition and held that the Legislature restricted the benefit of Cenvat credit for input services used in respect of inputs only to these two categories viz. for the procurement of inputs and for the inward transportation of inputs. This interpretation which has been placed by the Tribunal is ex-facie contrary to the provisions contained in Rule 2 (l). The first part of Rule 2(l) inter alia covers any services used by the manufacturer directly or indirectly, in or in relation to the manufacture of final products. The inclusive part of the definition enumerates certain specified categories of services. However, it would be farfetched to interpret Rule 2 (l) to mean that only two categories of services in relation to inputs viz. for the procurement of inputs and for the inward transportation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f head office. We find that there is no dispute that the service was received by the appellant in their factory. Even though the address of head office is mentioned but so long the input service was received by the appellant for their factory, the credit cannot be denied. There is no case of the department that the credit on such invoice has been taken in appellant s other unit. This issue has been considered by this Tribunal in the case of Madhya Pradesh Consultancy Organization Ltd. (supra), the relevant para 14 is reproduced below:- 14. Regarding denial of Cenvat credit of Rs. 22,500/-, the appellant pleaded that such denial is only on the ground that the invoices were not in the appellant s name but were *sic+ in the name of branch/head office. We note that this cannot be the reason for denial of credit. There is no allegation or finding to the effect that the input services were not received by the appellant or the said services were not covered under the scope of eligible input services in terms of the Cenvat Credit Rules, 2004. In such situation, we find that the denial of credit only on the ground that the address of branch office or head office was mentioned instead of app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayable, description of the goods or taxable service, assessable value, Central Excise or Service tax registration number of the person issuing the invoice, as the case may be, name and address of the factory or warehouse or premises of first or second stage dealers or provider of output service, and the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, is satisfied that the goods or services covered by the said document have been received and accounted for in the books of the account of the receiver, he may allow the Cenvat credit. Though I agree with the contention of the Noticee that the Cenvat credit rules do not state that the premises of the recipient has to be registered preemies in order to avail the Cenvat credit, yet in view of the rules quoted herein above i.e. either rule 4 or rule 9 of CCR, the name and address of the person receiving the service is of utmost importance. In the given case the name and address of the service recipient pertains to the branch which is not registered with the jurisdictional authorities. Now, when the Cenvat credit rule gives a discretion to the deputy/ assistant commissioner to allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the requirement of Rule 4A of the 1994 Rules and Rule 9 of the 2004 Rules are satisfied, the benefit of Cenvat credit could not have been demanded. Thus, the Commissioner was not justified in denying the benefit of Cenvat credit on the unregistered premises. 20. The Commissioner has further held that the benefit of Cenvat credit for services received by the Appellant on the strength of invoices addressed to another unit is not admissible as the Appellant failed to take Central Registration or ISD Registration to avail and distribute the Cenvat credit. 21. This finding of the Commissioner is also not correct. There is no law that prescribes that the only way to distribute Cenvat credit is registering as an ISD. 7.2 In view of the above judgments, it is settled that merely because the invoice is bearing the address of head office credit to the appellant s unit cannot be denied. 8. In view of the above discussion, supported by the various judgments, we are of the view that appellant succeeds on all the three issues and the credit on all the three issues are admissible to the appellant. Accordingly, the impugned order is set aside and appeal is allowed. In view of the above decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing order: From the above judgment, it can be seen that the issue is identical in the present case as in the above cited case. Therefore, the ratio of the above judgment is applicable in the present case. Accordingly. irrespective of the fact that windmill is located outside the factory premises, repair and maintenance service is admissible for Cenvat credit in terms of rule 2 (1) of Cenvat Credit Rules, 2004. Accordingly, the impugned orders are set aside. Appeals are allowed. C) Identical issue was considered in the case of Saurashtra Cement Limited wherein the fact was the Dredging services was availed outside the registered premises and the Revenue s contention was that the same was neither used for manufacture nor removal of goods, hence, the same is not qualified as the input service. The Tribunal, Ahmedabad held that active jetty of the appellant, which is exclusively used by the appellant only. At time, the appellant have to get the Dredging done at the Jetty for proper function of the Jetty to improve the draft. Since jetty is used primarily for import of coal which is used in the manufacture of final product, Dredging service is qualified as input service, merely because ..... X X X X Extracts X X X X X X X X Extracts X X X X
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