2014 (7) TMI 485 - AT - Central Excise

Tribunal overturns Commissioner's order, cites judicial indiscipline. Appeal allowed, costs imposed on respondent.

The Tribunal found the Commissioner's order unsustainable, emphasizing judicial indiscipline and a lack of application of mind. The Tribunal set aside the ... CENVAT Credit - Input Services - Insurance of plant and machinery, goods in transit, cash in transit and insurance of vehicles, and laptop - Nexus with business - Held that:- an service for being cenvatable must be used in or in relation to the manufacture of final product whether directly or indirectly is not correct and any service having nexus with the business of manufacture which has been used by a manufacturer would qualify as an input service. Insurance of plant and machinery, goods in transit, cash in transit and insurance of vehicles, and laptop, is an integral part of manufacturing business, as no manufacturer would carry on manufacturing operations without insurance of plant & machinery, cash in transit, goods in transit, vehicles & computers, etc. against any loss due to accident, natural calamities, etc. In view of this, the services of plant and machinery, transit insurance of goods, insurance of cash in transit, laptop, etc. have to be treated as an activity related to the business and would be eligible for cenvat credit. Group Insurance of all Employees against sickness or accident, the same has been held as cenvatable by the judgements of Hon'ble Karnataka High Court in the cases of Stanzen Toyotetsu India (P) Ltd. (Stanzen Toyotetsu), Micro Labs Ltd. [2011 (6) TMI 115 - KARNATAKA HIGH COURT] and M/s. Millipore India Ltd. (2008 (11) TMI 97 - CESTAT, BANGALORE). Moreover, Group insurance of the employees against accident or sickness is the requirement of Section 38 of the Employees State Insurance Act, 1948, which a manufacturer has to comply with and accordingly, this service would have to be treated as a service used in or in relation to the manufacture of final products whether directly or indirectly, as a manufacturer would not be allowed to carry on manufacturing operations unless he complies with the requirements of Section 38 of the Employees State Insurance Act, 1948. Commissioner, has either ignored previous judgments and not given any findings as to how these judgments are not applicable or has made observations contrary for the judgments of the Tribunal/High Court and has decided the question of eligibility of various insurance services for Cenvat credit on the basis of his own interpretation of Rule 2 (1) of Cenvat Credit Rules, 2004 observing that amendment to this rule w.e.f. 01.04.2011 is a retrospective amendment and the insurance services, in question, have no nexus with manufacture of final products. The conduct of the Learned Commissioner amounts to clear judicial indiscipline and irresponsible exercise of adjudication function. Such exercise of adjudication powers in blatant violation of Apex Court's judgment in case of Union of India Vs. Kamlakshi Finance Corporation Ltd., reported in [1991 (9) TMI 72 - SUPREME COURT OF INDIA] requires to be censured as, if allowed to go unchecked, would lead to collapse of entire dispute resolution mechanism. Such adjudication orders burden not only the Assessee who has to incur avoidable expenses on challenging such order before the Courts/Tribunal, but also impose clearly avoidable costs for the Government, as the Tribunal's/Court's valuable time is also consumed in hearing appeals against such clearly erroneous and indisciplined orders, which should never have been passed. - Decided in favour of assessee. Issues Involved:1. Eligibility for Cenvat credit on insurance services.2. Nexus of insurance services with the manufacture of final products.3. Retrospective application of the amendment to Rule 2(1) of the Cenvat Credit Rules, 2004.Detailed Analysis:1. Eligibility for Cenvat Credit on Insurance Services:The appellant, engaged in manufacturing activities, availed Cenvat credit on various insurance services, including insurance of plant and machinery, marine insurance, insurance of cash in transit, vehicle and laptop insurance. The Audit party of C & AG objected to this, leading to the issuance of show cause notices for recovery of allegedly wrongly availed Cenvat credit amounting to Rs. 3,05,98,072/- for the period from October 2004 to December 2007. This was followed by additional show cause notices for the periods from January 2008 to June 2008 and July 2008 to December 2008, amounting to Rs. 10,95,676/- and Rs. 10,90,055/- respectively.2. Nexus of Insurance Services with the Manufacture of Final Products:The Commissioner disallowed the Cenvat credit on grounds that insurance services did not have a nexus with the manufacture of final products. However, the Tribunal referenced the Hon'ble Bombay High Court's judgment in CCE Vs. Ultra Tech Cement, which held that the definition of 'input service' is broad and includes services used in relation to the business of manufacturing final products. The Tribunal emphasized that insurance services are integral to the manufacturing business, as no manufacturer would operate without insuring plant and machinery, goods in transit, cash in transit, vehicles, and laptops against potential losses.3. Retrospective Application of the Amendment to Rule 2(1) of the Cenvat Credit Rules, 2004:The Commissioner treated the amendment to Rule 2(1) effective from 1.4.2011, which deleted 'activities relating to business,' as a clarificatory amendment with retrospective effect. The Tribunal rejected this reasoning, noting that the Commissioner failed to provide adequate justification for treating the amendment as retrospective. The Tribunal highlighted that the definition of 'input service' during the disputed period included 'activities relating to business,' thus covering the insurance services in question.Conclusion:The Tribunal found the Commissioner's order unsustainable, highlighting judicial indiscipline and a lack of application of mind. The Tribunal set aside the impugned order, allowed the appeal, and imposed costs of Rs. 5,000/- on the respondent, payable to the appellant. The Tribunal also directed the Registry to forward a copy of the order to the Chairman, Central Board of Excise & Customs, for information and consideration.