Prior registration not required for claiming Cenvat credit and input service credits for construction upheld; disallowances denied

Whether prior registration is a precondition for claiming Cenvat credit: held that prior registration is not required; Tribunal and HC precedent govern, so credits availed before registration are admissible. Outcome: credit claim upheld. Whether input services used in setting up/erection of immovable property (excluded by amendment w.e.f. 01.04.2011): held that the issue is settled by precedent and that the bulk of credit was availed before the amendment; post-amendment amounts were found not to pertain to excluded construction services. Outcome: challenged disallowances denied; impugned order upheld and Revenue's appeal dismissed.

---

---

Issues: (i) Whether Cenvat credit availed prior to obtaining registration is admissible under the Cenvat Credit Rules, 2004; (ii) Whether Cenvat credit on commercial construction and allied services for setting up immovable property is admissible under the Cenvat Credit Rules, 2004 for the periods before the amendment effective 01.04.2011.

Issue (i): Whether Cenvat credit availed prior to obtaining registration is admissible under the Cenvat Credit Rules, 2004.

Analysis: The issue was examined with reference to the pre-existing rule framework and consistent tribunal and High Court decisions which treat registration as not a pre-condition for claiming Cenvat credit or refund unless a statute specifically mandates registration as mandatory.

Conclusion: The Cenvat credit availed prior to obtaining registration is admissible in favour of the assessee.

Issue (ii): Whether Cenvat credit on commercial construction and allied services for setting up immovable property is admissible under the Cenvat Credit Rules, 2004 for the periods before the amendment effective 01.04.2011.

Analysis: The definition of "input service" as it stood prior to 01.04.2011 was applied to the services in question; services used in relation to setting up premises for providing output services qualify as input services where they fall within that pre-amendment definition. The post-amendment exclusion of certain construction-related services did not apply to services received and invoiced prior to 01.04.2011; the adjudicating authority's factual finding that the small amount of credit taken after amendment did not pertain to excluded construction services was considered.

Conclusion: The Cenvat credit on commercial construction and allied services for setting up immovable property is admissible for the period before 01.04.2011; the small credit taken after amendment was correctly held not to be for excluded construction services, in favour of the assessee.

Final Conclusion: The impugned order dropping the demand is upheld and the Revenue's appeal is dismissed, confirming the availability of Cenvat credit under the Cenvat Credit Rules, 2004 as decided on the above issues.

Ratio Decidendi: Where services fall within the definition of "input service" as on the date they were received, registration is not a precondition for claiming Cenvat credit and input services used for setting up premises qualify for credit if received prior to the amendment excluding construction-related services effective 01.04.2011.

---