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TMI Blog2024 (11) TMI 1135X X X X Extracts X X X X X X X X Extracts X X X X ..... e service of renting of immovable property service is directly used for providing output service of the appellant, therefore, the same is clearly covered under the main clause of the definition of input service in terms of Rule 2(l) of Cenvat Credit Rules, 2004. We find that even subsequently w.e.f 01.04.2011, certain services were excluded from the purview of definition of input service however, the service namely, renting of immovable property service is not covered under the exclusion clause of the definition, therefore, even from 01.04.2011 also the renting of immovable property service continued to be admissible input service for the purpose of availing the cenvat credit. This issue is no longer res-integra as interpreting the removal of setting up in the inclusion clause, the cenvat credit was allowed in NAVIN FLOURINE INTERNATIONAL [ 2024 (10) TMI 1396 - CESTAT AHMEDABAD] as regard the use of service we are of the view that there is no dispute that those services were used in or in relation to the manufacture of the final product. As regard the contention of the revenue that setting up of factory has been removed from the inclusion clause, in our view the removal of from set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e service of renting of immovable property service does not fall under the exclusion clause of the definition. For this reason also the cenvat credit is clearly admissible as held in the above judgments. He also submits that the demand was confirmed by invoking extended period under Section 73(1) of the Finance Act, 1994 however there is no deliberate suppression of fact or willful misstatement with intent to utilize inadmissible cenvat credit. The appellant have been filing the ST-3 returns regularly and there is no mis-declaration inasmuch as the cenvat credit availed on the impugned services have been clearly reflected in the return without any concealment. In support, he placed reliance on the Apex Court judgment in the case of Anand Nishikawa Co. Ltd. 2005 (188) ELT 149 (SC). 3. Shri Tara Prakash, learned Deputy Commissioner (Authorised Representative) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. On careful consideration of the submission made by both the sides and perusal of records we find that the cenvat credit was denied by the lower authority on the ground that renting of immovable property service falls under the category of settin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structures for support of capital goods, except for the provision of one or more of the specified services; or The exclusion clause in theCenvat Credit Rules, 2004 was amended with effect from 01.07.2012 with a view to align the same with the changed concept of Negative List regime of services. Definition of input service w.e.f. 01.07.2012: (l) input service means .; but excludes services,- (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 From the above definition, it is clear that except the services mentioned in the exclusion clause all the services which are used in or in relation to the manufacture of final product and clearance of goods upto the place of removal are admissible input service. As regard the use of service we are of the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted wherein this Tribunal has observed as under: 5. Having expressed our anguish, we note that the issue is no more res Integra. Reliance can be placed to the following decisions; (i) Indian Potash Ltd. vs Commissioner of Central GST, Meerut [2018 (10) TMI 1367-CESTAT Allahabad] (ii) Hindustan Coca Cola Beverages Pvt. Ltd. vs. Commissioner of Central Tax [2018 (10) TMI 1366- CESTAT Bangalore] (iii) Industrial Filters Fabrics Pvt. Ltd. vs. CGST CE, Indore[2019 (1) TMI 1426-CESTAT New Delhi] (iv) Suryadev Alloys and Power Pvt Ltd. vs. Commissioner of GST Central Excise, Chennai [2018 (11) TMI 1019-CESTAT Chennai] (v) Umesh Engineering Works vs. Commissioner of Central Tax, Bengaluru West [2019 (1) TMI 1158- CESTAT Bangalore] (vi) Sarda Energy and Minerals Ltd. vs. CCE ST, Raipur [2019 (4) TMI 473- CESTAT New Delhi] Wherein it was clearly held that the six month limitation provided with effect from 01/09/2014 would not apply to the cenvatable invoices issued prior to said date. The other decisions relied upon by the Ld. Advocate are also to the same effect but multiplying the precedent decisions would not make a difference as it is a settled law. Further, not only various Tribunals de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Commissioner - (2016) 96 VST 1 (SC) = 2018 (19) G.S.T.L. 3 (S.C.), it was held that a provision introduced for the first time cannot be given retrospective effect. It is further held as under: 11. Now it is a well-settled rule of interpretation hallowed by time and sanctified by judicial decisions that, unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure. The general rule as stated by Halsbury in Volume 36 of the Laws of England (Third Edition) and reiterated in several decisions of this court as well as English Courts is that - all statutes other than those which are merely declaratory or which relate only to matters of procedure or of evidence are prima facie prospective and retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability or obligation unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in langu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PL will have to be permitted to be adjusted against the CE duty settled as will the service tax paid on the input services. 5. Relying on the aforesaid decision, the appeal is allowed. 5.1 In view of the above judgment, it is settled that the provision for limitation of Six months/ One Year for availment of credit from the date of invoice, is applicable only in respect of the invoices issued after 18.09.2014. In the present case, since the invoices are prior to 18.09.2014, the limitation of six Months/ one year shall not apply. Hence, the credit on this issue is admissible to the appellant. 6. As regard the issue B above, the appellant have availed Cenvat Credit in respect renting of immovable property service for a warehouse taken on lease outside the factory premises. However, the warehouse is used for storage of raw material, this activity is directly related to the manufacturing of the appellant. Merely, because the warehouse is located outside the factory premises, the credit of input service cannot be denied. 6.1 As regard the credit on input service, the only criteria is that irrespective of the location of service received if the service is essential for in or in relation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repair and maintenance of wind mill which is located outside the factory premises. Both the lower authorities have denied the Cenvat Credit on the ground that the wind mill is located outside the factory premises. An identical issue has been decided by this Tribunal in the case of Commissioner of Central Excise Customs, Aurangabad v/s Endurance Technology 2015-TIOL-1371-HCMUMST wherein after considering various judgments following order was passed: Both these appeals can be disposed of by this common judgment as the facts and controversies between the parties are similar. 21 The appellant is challenging judgment and order passed by Central Excise Service Tax Appellate Tribunal [CESTAT for short]. The substantial questions that arise for our consideration and which are indentified earlier are as under: I] Whether the CESTAT is correct in holding that the assessee is entitled to avail the CESTAT credit on management, maintenance or repair services provided on services provided to Windmills installed and situated away from factory and factory premises? II] Whether electricity generated at Supa and Satara, situated for away, could be said to have been used for manufacture of the final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peed diesel oll or motor spirit, commonly known as petrol, shall not be treated as an input for any purpose whatsoever. Explanation 2: Input include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer; 2(B) (I) 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 from 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 upto 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 upto the place of removal. (m) Input service distributor means an office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the day which payment is made of the value of input service and the service tax paid or payable as is indicated in invoice, bill or, as the case may be, challan referred to in rule 9, 5] On perusal of these Rules, it becomes clear that the management, maintenance and repair of windmills Installed by the respondents is input service as defined by clause I of Rule 2. Rule 3 and 4 provide that any input or capital goods received in the factory or any input service received by manufacture of final product would be susceptible to CENVAT credit. Rule does not say that input service received by a manufacture received at the factory premises. The judgments referred to above, also interpret the word input service in similar fashion. In the case of Commissioner of Central Excise, Nagpur Versus Ultratech Cement Ltd. [cited supra), the Division Bench of this Court held that the definition of input service is very wide and covers not only services which are directly or indirectly used in or in relation to manufacture of final product but also includes various services used in relation to business of manufacture of final product. The expression activities in relation to business is also discuss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facturer of the final product. This must be read with the broad and comprehensive meaning of the expression 'input service' in Rule 2(1). 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. 6] In view of this discussion, we have no hesitation to hold that the answer to question No.(I) is in affirmative. Despite this settled position, learned counsel for the appellant tried to submit that the judgment cited at Sr. No. (2) is being challenged before Supreme Court. This submission does not really help us in deciding the appeals. Both appeals are dismissed. 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 (l) of Cenvat Cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er:- 13. In regard to Cenvat credit of Rs. 1,04,10,273/- availed by the Appellant on the basis of invoices addressed to the office situated at B6/117 Safdarjung Enclave which is not registered with the Service Tax Department, the Commissioner discussed the issue in two parts, namely : (i) Whether the Noticee is entitled to avail the Cenvat credit on the strength of invoices/bills issued to their office which is unregistered with Service Tax Department. (ii) Whether the Noticee is required to obtain centralized service tax registration for their different offices or they are required to registered as input service distributor for availing the Cenvat credit on the invoices issued on the different address of the Noticee. 14. The Commissioner held that invoices should contain the address registered with the Service Tax Department and the findings are : Here it is pertinent to mention that Rule 4A of Service Tax Rules, 1994 speaks about invoices, bills and challans to be issued by the service provider. It states that invoices, bills and challans shall be serially numbered and shall contain the following, namely-(i) the name, address and the registration number of such person; (ii) the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia Wireless Solutions (P) Limited held that there is no requirement in law that the premises should be registered for availing Cenvat credit and the relevant portion is reproduced below : 7. Insofar as requirement of registration with the department as a condition precedent for claiming CENVAT credit is concerned, Learned Counsel appearing for both parties were unable to point out any provision in the Cenvat Credit Rules which impose such restriction. In the absence of a statutory provision which prescribed that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside . 17. A Division Bench of the Tribunal in Adbur Private Limited also observed as follows: 9. Regarding denial of Cenvat credit on the ground that the invoices were addressed to unregistered premises of the appellant, we note that there is no dispute regarding eligibility of input service for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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