2012 (12) TMI 388 - AT - Central Excise

Appellant Wins CENVAT Credit Appeal on Inputs, Restrictions on Certain Services

ADC INDIA COMMUNICATIONS LTD. Versus COMMR. OF C. EX., BANGALORE

The appellant succeeded in challenging the denial of CENVAT credit on written-off inputs, amounting to Rs. 1,97,601. The Tribunal allowed CENVAT credit on ... CENVAT credit on various services - input services - use for the purpose of manufacturing - held that:- CENVAT credit on pest control allowed - Cenvat Credit on AMC for ST plant for sewage disposal allowed - AMC for air conditioners for instrumentation room allowed since there is a nexus between the said service and the manufacture of excisable products by the appellant inasmuch as testing of the products in the factory is an imperative requirement pre-clearance. - Cenvat Credit on canteen facility denied since the appellant admittedly did not have 250 or more employees/workers during the material period. Cenvat Credit on AMC for computers - certain part of the CENVAT credit taken on AMC for computers was reversed by the appellant accepting the fact that this much credit was not used in connection with manufacture or clearance of their products. - for the remaining part, credit allowed. CENVAT credit on Air travel agent’s service - claim of the appellant is that their employees had to travel extensively in connection with the business of the appellant – Held that:- There is no documentary evidence to show that the air travels made by the employees were in connection with the business of manufacturing and marketing of excisable products and not as part of any welfare scheme for the employees - challenge against denial of CENVAT credit on air travel agent’s service fails Online auction service - appellant submit that they used this service for disposal, by auction, of scrap which was generated in the course of manufacture of their final products. It is submitted that the scrap was also cleared on payment of duty. If that be so, online auction resorted to by the appellant is an input service used for clearance of excisable goods. A direct nexus stands established between online auction service and the clearance of excisable goods - credit allowed. Penalty - appellant has also challenged the penalties imposed on them under Rule 15 read with Section 11AC of the Central Excise Act. After hearing both sides on this issue, I take the view that the penalty-related issue requires to be addressed by the original authority, now that the appeals have been partly allowed. That authority is directed to take fresh decision on the question whether any penalty is liable to be imposed on the party under the aforesaid provisions – matter remanded back Issues:1. Denial of CENVAT credit on written-off inputs.2. Denial of CENVAT credit on certain activities not recognized as 'input services.'3. Challenge to denial of CENVAT credit on pest control, AMC for ST plant, AMC for air conditioners, canteen facility, and AMC for computers.4. Denial of CENVAT credit on outdoor catering services and entitlement to CENVAT credit based on the number of employees.5. Denial of CENVAT credit on air travel agent's service and online auction service.6. Challenge to penalties imposed under Rule 15 read with Section 11AC of the Central Excise Act.Analysis:1. The first issue pertains to the denial of CENVAT credit on written-off inputs. The appellant challenged the denial, arguing that the requirement for such reversal of credit was introduced after the period in question. Relying on a Tribunal decision, the appellant succeeded in their challenge against the denial of CENVAT credit amounting to Rs. 1,97,601.2. The second issue involves the denial of CENVAT credit on certain activities not recognized as 'input services.' The appellant contested the denial on activities like pest control, AMC for ST plant, AMC for air conditioners, canteen facility, and AMC for computers. The Tribunal found a nexus between these services and the manufacture of excisable products, allowing the CENVAT credit on pest control, AMC for ST plant, AMC for air conditioners, and AMC for computers.3. The third issue focuses on the denial of CENVAT credit on outdoor catering services and the entitlement to CENVAT credit based on the number of employees. The Tribunal held that the appellant was not entitled to CENVAT credit for the canteen facility due to the lack of statutory liability under Section 46 of the Factories Act regarding the number of employees.4. Moving to the fourth issue, the denial of CENVAT credit on air travel agent's service and online auction service was challenged. The Tribunal found that there was no documentary evidence to support the air travel agent's service claim but allowed the challenge regarding the online auction service, establishing a direct nexus between the service and the clearance of excisable goods.5. Lastly, the issue of penalties imposed under Rule 15 read with Section 11AC of the Central Excise Act was raised. The Tribunal directed the original authority to reexamine the penalty-related issue after partially allowing the appeals, ensuring a reasonable opportunity for the appellant to be heard.This comprehensive analysis of the judgment addresses each issue raised, providing a detailed understanding of the Tribunal's decisions and the legal reasoning behind them.