2018 (8) TMI 1093 - AT - Central Excise

Tribunal upholds Cenvat credit demand for Courier Service post-01.04.2008; no penalty imposed

The Tribunal upheld the demand for Cenvat credit of Rs. 29,46,646/- along with interest for Courier Service post-01.04.2008. However, the rest of the ... CENVAT Credit - various input services - Business Support Service - Outdoor Catering Service - Commercial or Industrial Construction Service - Courier Service (Outward) - Custom House Agent Service - Transport of Goods by Road - Manpower Supply Agency Service - Management, Maintenance or Repair Service - Architects Service - Telephone Service. Business Support Service - Held that:- The Business Support Service has been used for logistic support services like verification of goods, receipt of goods etc., which is covered in the definition of ‘input service’ at the given time - the input service credit in business support service is admissible to the appellant - Credit allowed. Outdoor Catering Service - Held that:- The same has been held to be admissible service for the purpose of input service credit in the light of decision of Hon’ble Bombay High Court in the case of CCE, Nagpur vs. Ultratech Cement Ltd. [2010 (10) TMI 13 - BOMBAY HIGH COURT] - Credit allowed. Commercial or Industrial Construction Service used for the construction of the factory - Held that:- The issue is no longer res integra and has been decided in the favour of the assessee in the case of CCE, Delhi-III vs. Bellsonica Auto Components India P. Ltd [2015 (7) TMI 930 - PUNJAB & HARYANA HIGH COURT], where it was held that the services in question had been used for brining into existence an immovable property and not for the manufacture of the final product. The said services cannot be said to be remotely connected to the final product - credit allowed. Courier Service - Held that:- Courier Service was admittedly taken for transportation of goods for sale to customers. The amount has been paid as service tax to its vendors for providing the taxable service of ‘Courier Services’ for the purposes of transportation of finished goods (spare parts) to its distributors/dealers - the amount of input credit availed before 01.04.2008 is admissible to the appellant as the same is linked with the activity of business or manufacture - However, the input service in relation to outward transportation beyond the place of removal is not included in the definition of ‘input service’ after 01.04.2008 - credit allowed in part. Custom House Agent Service - the same is denied on the ground that the service was availed beyond the place of removal - Held that:- The port was the place of removal in case of exports - reliance placed in the case of CCE vs. Dynamic Industries [2014 (8) TMI 713 - GUJARAT HIGH COURT], where the issue was decided in favor of assessee - credit allowed. Transport of goods by road - Held that:- The same pertains to the period prior to 01.04.2008 (prior to the amendment in 2008), hence, the same is admissible to the appellant - credit allowed. Manpower Recruitment and Supply Service - Held that:- It is an admitted fact that the amount was paid by the appellant as service tax to the vendors for providing recruitment services for supply of manpower on temporary basis. It is not disputed that the said manpower was essential for the purpose of carrying the operations of the business of the appellant - credit allowed. Management, Maintenance and Repair Service - Held that:- The same has been used in relation to maintenance/repair of capital goods and equipment in the factory of the appellant. Since the manufacturing activity service of the appellant cannot take place without the repair/maintenance of equipment and capital machinery, the input service credit is admissible to the appellant - credit allowed. Penalty - Held that:- It is purely a question of interpretation of law - the issue was finally settled at the level of Hon’ble Apex Court, the penalty for this period is not justified. Accordingly, no penalty is imposable on the appellant. Appeal allowed in part. Issues Involved:1. Admissibility of Cenvat credit on various services including Business Support Service, Outdoor Catering Service, Commercial or Industrial Construction Service, Courier Service (Outward), Custom House Agent Service, Transport of Goods by Road, Manpower Supply Agency Service, Management, Maintenance or Repair Service, and Architects Service.Issue-wise Detailed Analysis:1. Business Support Service:The Tribunal found that the Business Support Service used for logistics, verification, and receipt of goods falls within the definition of 'input service'. This decision aligns with the Tribunal's ruling in Castrol India Limited and the Bombay High Court's judgment in CCE, Nagpur vs. Ultratech Cement Ltd. Consequently, the input service credit for Business Support Service was deemed admissible.2. Outdoor Catering Service:The Tribunal held that Outdoor Catering Services are admissible for input service credit based on the Bombay High Court's decision in CCE, Nagpur vs. Ultratech Cement Ltd. Thus, the input service credit for Outdoor Catering Service was allowed.3. Commercial or Industrial Construction Service:The Tribunal referenced the Punjab & Haryana High Court's decision in CCE, Delhi-III vs. Bellsonica Auto Components India P. Ltd., which clarified that services used for setting up a factory fall under the 'input service' definition. The Tribunal concluded that input service credit for Commercial or Industrial Construction Service is admissible.4. Courier Service (Outward):The Tribunal differentiated between periods before and after 01.04.2008. It held that input service credit for Courier Service is admissible before 01.04.2008, as it relates to business or manufacturing activities. However, post-01.04.2008, following the Supreme Court's ruling in CCE vs. Ultratech Cement Ltd., the credit is not admissible as outward transportation beyond the place of removal is excluded from the 'input service' definition. The Tribunal upheld the demand for Cenvat credit of Rs. 29,46,646/- along with interest for the period after 01.04.2008.5. Custom House Agent Service:The Tribunal ruled that input service credit for Custom House Agent Service is admissible, referencing the Gujarat High Court's decision in CCE vs. Dynamic Industries, which stated that such services at the port of export are related to manufacturing activities.6. Transport of Goods by Road:For the period before 01.04.2008, the Tribunal allowed input service credit for transport of goods by road, citing the Supreme Court's judgment in CCE, Guntur vs. The Andhara Sugars Ltd., which recognized outbound transportation from the place of removal as an input service.7. Manpower Supply Agency Service:The Tribunal acknowledged that the service tax paid for recruitment services or temporary manpower supply is essential for business operations. It referred to the Tribunal's ruling in Honda Motorcycle & Scooter (I) Pvt Ltd, which affirmed that credit on manpower recruitment and supply service is admissible. Thus, the input service credit was allowed.8. Management, Maintenance or Repair Service:The Tribunal held that input service credit for Management, Maintenance, and Repair Service is admissible, as these services are essential for maintaining equipment and machinery necessary for manufacturing activities.Penalty:The Tribunal noted that the issue of input credit on Courier Service post-01.04.2008 was a matter of legal interpretation and was only settled by the Supreme Court in 2018. Given the prior judicial pronouncements extending the benefit, the Tribunal decided that no penalty was justified for this period.Conclusion:(i) The demand of Cenvat credit of Rs. 29,46,646/- along with interest was upheld for Courier Service post-01.04.2008.(ii) The rest of the adjudication order was set aside.The appeal was disposed of accordingly.