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TMI Blog2025 (3) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... he definition of "input service" w.e.f. 01.04.2011. However, the appellant has not availed credit in respect of civil works undertaken by them for setting up of the plant. They have only availed the credit in respect of services such as banking and other financial services, management, maintenance and repair services, rent-a-cab services, GTA services, legal consultancy services, erection, commissioning and installation services, etc., which are all "input services" in terms of Rule 2(l) of the CENVAT Credit Rules, 2004. Thus, the appellant is eligible to avail CENVAT Credit in respect of the above said services - the denial of CENVAT Credit on the input services used in setting up of the plant, is not sustainable. Whether the appellant is entitled to the CENVAT Credit of Rs.32,557/- availed on the basis of Debit Notes for rent (reimbursement of electricity charges) under Rule 4A of the Service Tax Rules, 1994? - HELD THAT:- The appellant have already paid Service Tax of Rs.2,34,520/- and enclosed a Chartered Accountant certificate to that effect. Regarding the balance amount of Rs.32,557/-, the appellant submitted that they have availed Cenvat credit of Rs.32,557/- on Debit Notes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DER M/s. NU Vista Limited (formerly known as 'M/s. Emami Cement Limited), DLF IT Park 1, Tower C, 10th Floor, 08, Major Arterial Road, New Town (Rajarhat), Kolkata - 700 156 [hereinafter referred to as the "appellant"] were issued a Show Cause Notice dated 17.10.2014 inter alia demanding Service Tax, including cess, as follows: - (i) Rs.57,68,603/- under proviso to Section 73(1) of the Finance Act, 1994 read with Rule 14 of the CENVAT Credit Rules, 2004. (ii) Rs.2,67,077/- under proviso to Section 73(1) of the Finance Act, 1994 read with Rule 14 of the CENVAT Credit Rules, 2004. (iii) Rs.96,284/- under proviso to Section 73(1) of the Finance Act, 1994 read with Rule 14 of the CENVAT Credit Rules, 2004. 1.1. On adjudication, the Ld. Commissioner of Service Tax, Service Tax-II Commissionerate, Kolkata has confirmed the demands of Rs.57,68,603/- Rs.2,67,077/- and Rs.85,692/- against the appellant and imposed Rs.61,21,372/- as penalty under Section 78 of the Finance Act, 1994. He also ordered for payment of interest by the appellant, amounting to Rs.24,88,246/- under Section 75 of the Finance Act, 1994. 2. Aggrieved by the confirmation of the said demands, the appellant has fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the appellant relied upon the decision in the case of Gates Unitta Indian Company Pvt. Ltd. Vs Commissioner of GST & Central Excise, Chennai reported in 2021 VIL 457 CESTAT CHE-ST . In this regard, the appellant also submits that this issue is no more res integra as the Tribunal has allowed the credit availed on the basis of debit notes issued, in the case of M/s. Tata Steel Ltd. v. Commissioner of C.Ex. & S.T., Jamshedpur [Final Order No. 76233 of 2024 dated 28.06.2024 in Excise Appeal No. 75590 of 2014 - CESTAT, Kolkata]. Accordingly, the appellant submits that they are eligible for the availment of the balance CENVAT Credit to the extent of Rs.32,557/-. 3.2. In respect of the demand of Service Tax of Rs.85,692/-, the appellant has submitted that they have already paid Service Tax on this count vide GAR Challan dated 03.08.2012 (wrongly mentioned by the Ld. Commissioner as 08.03.2012) and hence, the demand confirmed on this count is not sustainable. 3.3. With regard to the demand of interest amounting to Rs.24,88,246/-, it has been submitted by the appellant that they were always having excess CENVAT Credit lying in their CENVAT Credit account over and above the credit availe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court observed as follows:- "5. After hearing both the parties and keeping in view the various Orders at each stage of this litigation and the case law as relied upon by the appellant, I am of the opinion that the issue has been dealt by various adjudicating authorities and it has now been clearly settled that structures like Ms angle, Ms channels, Ms joists, chequered plates or similar steel structures used in fabrication of supporting structures if are merely the civil structures for supporting the machines/ apparatus used in manufacture of final product stands excluded from the definition of capital goods .But if such structures satisfies the "user test" principle as appreciated by Hon'ble Apex Court in Rajasthan Spinning & Weaving Mills Ltd. (supra) case, all these structural items are as good as spare parts of the capital goods as mentioned in Clause 3 of Section 2(a) of Cenvat Credit Rules, 2004 and thus are eligible inputs/ capital goods for availing credit. The final product in the present case is the sponge iron for which the kiln, burning chamber, conveyor gallery, fabrication of walkways of platform, staircases, shed, etc. are the essential machineries. As per ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of the decisions of the various High Courts and the Tribunal wherein the user test principle has consistently been followed, we are of the view that Cenvat availed by the appellant for setting up of CHP, which is used for evacuation of coal by rapid loading process, cannot be legally denied." 6.2. The same view has also been expressed by the Tribunal in the case of M/s. Brahmani River Pellets Ltd. v. Commissioner of C.G.S.T. & C.X., Rourkela [2023 (10) TMI 287 - CESTAT, Kolkata]. 6.3. In view of the above discussions above and by following the decisions cited above, we hold that the denial of CENVAT Credit on the input services used in setting up of the plant, is not sustainable. Accordingly, we set aside the demand of Rs.57,68,603/- confirmed in the impugned order. 7. Regarding the demand of Service Tax of Rs.2,67,077/-, we observe that the appellant have already paid Service Tax of Rs.2,34,520/- and enclosed a Chartered Accountant certificate to that effect. Regarding the balance amount of Rs.32,557/-, the appellant submitted that they have availed Cenvat credit of Rs.32,557/- on Debit Notes for rent ( reimbursement of electricity charges). We observe that the Debit No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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