TaxTMI 
TaxTMI 
2013 (1) TMI 197
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.... input services used in or in relation to the manufacture of their final product. A show cause notice dated 6-5-2009 was issued to the appellant for recovery of allegedly wrongly taken capital goods Cenvat credit and service tax Cenvat credit amounting to Rs. 20,92,68,194/- along with interest on it under Section 11AB of Central Excise Act, 1944 and also for imposition of penalty on the appellant under Rule 15 of Cenvat Credit Rules, 2004. Out of the above amount of Cenvat credit, the Cenvat credit of Rs. 12,54,71,323/-, is sought to be denied on the ground that this credit had been availed in respect of capital goods received when the factory was still under construction and, hence, the same was not admissible in terms of the Board's Circu....
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....perty, which is non-excisable, that this ground for denial is totally incorrect as for admissibility of capital goods Cenvat credit, what is relevant is as to whether the items brought into the factory for use therein are covered by the definition of 'capital goods' as given in Rule 2(a) of Cenvat Credit Rules, that it is not the department's case that the items in respect of which Cenvat credit amounting to Rs. 12,54,71,323/-, has been availed are not covered by the definition of 'capital goods' as given in Rule 2(a) of Cenvat Credit Rules, that in view of this, the order disallowing Cenvat credit of Rs. 12,54,71,323/- is totally incorrect, that for the same reason, the order disallowing service tax credit of Rs. 5,86,62,803/- is also inco....
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....ppeal being filed against that order, the Tribunal vide Stay Order No. 1640/2011-EX., dated 8-12-2011 had granted unconditional stay. He, therefore, pleaded that in this matter also the requirement of pre-deposit of Cenvat credit demand, interest and penalty may be waived for hearing of the appeal and recovery thereof may be stayed till the disposal of the appeal. 5. Shri Nagesh Pathak, the learned Senior Departmental Representative, opposed the stay application by reiterating the findings of the Commissioner in the impugned order and emphasised that this is not the case for waiver from the requirement of pre-deposit. 6. We have carefully considered the submissions from both the sides and perused the records. 7. Cenvat cre....
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....oreover, when the department does not dispute that the goods falling under Chapters 82, 84, 85, 90 and Pollution Control Equipment and refractory material, etc., covered by the definition of capital goods have been received in the factory, the same would in any case become eligible for Cenvat credit as soon as the factory commences production and, as such, the ground on which the credit is denied would no longer be there. However, there may be dispute about the eligibility for Cenvat credit in respect of Chapters 72 and 73 items as to whether the same were used in the foundation for erection of capital goods or as supporting structures for machinery and only to this extent the Cenvat credit would be inadmissible. 8. As regards, Cenvat....
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...., hence, would be covered by the definition of input service. Similarly, inward transportation of input or capital goods was also specifically covered by the definition of input service and, hence, the GTA service used for inward transportation of the goods would also be eligible for Cenvat credit. Similarly, the service of security, telephone, rent-a-cab operator service, used in connection with setting up of a factory would also be covered by the expression "activities relating to business" in the definition of input service and would be eligible for Cenvat credit. In view of this, we are of prima facie view that denial of Cenvat credit amounting to Rs. 5,86,62,803/- is not correct. 9. As regards, the Cenvat credit demand of Rs. 2,5....