2014 (5) TMI 1114 - AT - Central Excise

Court affirms Cenvat credit pre-2011, dismisses Revenue appeals. Condonation granted, impugned order non-executable. Precedents prevail.

CCE, Delhi-III Versus M/s Exide Industries Ltd.

The court dismissed both appeals by the Revenue, affirming the respondent's entitlement to Cenvat credit for construction activities pre-1.4.2011 and ... Cenvat Credit - Entitlement to avail the Cenvat credit of service tax paid on the construction activities of the factory and its parts, prior to 1.4.2011 - Held that:- Availability of Cenvat credit of service tax paid on repair and maintenance of the building/plant/road etc. I find that the definition of input service as contained in Rule 2(l) specifically includes services used in relation to modernisation, renovation or repair of a factory. The said definition was amended with effect from 1.4.2011 wherein construction of the factory was excluded. As there is no exclusion in respect of the services relatable to renovation or repair, find no reasons to hold that such services were not cenvatable. Accordingly, the Revenue's appeal on the said ground is also not acceptable. Issues:1. Delay in filing appeals2. Executability of the impugned order3. Entitlement to Cenvat credit on service tax for construction activities pre-1.4.20114. Availability of Cenvat credit on repair and maintenance servicesAnalysis:1. The judgment addresses the condonation of a six-day delay in filing both appeals and allows COD. The impugned order by the Commissioner (Appeals) is deemed non-executable, leading to the rejection of stay petitions.2. The first appeal concerns the entitlement of the respondent to Cenvat credit for service tax on construction activities pre-1.4.2011. The decision references various Tribunal cases, establishing the respondent's eligibility based on precedents. Consequently, the Revenue's appeal lacks merit and is dismissed.3. The second appeal revolves around the availability of Cenvat credit for service tax on repair and maintenance services. The judgment interprets the definition of input service under Rule 2(l), noting that services related to renovation or repair are cenvatable. Since the definition amendment excludes construction but not repair services, the Revenue's appeal on this ground is also rejected.4. Ultimately, both appeals by the Revenue are dismissed, affirming the respondent's entitlement to Cenvat credit for both construction activities pre-1.4.2011 and repair and maintenance services. The decision is based on the specific definitions and precedents cited, leading to the rejection of the Revenue's claims.