AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2019 (11) TMI 47
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 25 of the Central Excise Tariff Act, 1985. Their Head Office in Bangalore received certain services and paid for the services along with service tax. They have distributed credit of service tax so availed in their head office among their factories including the appellant herein through an ISD invoice. Along with ISD invoice issued by the appellant is a list of details of invoices on the basis of which ISD invoice has been issued and the corresponding services. A Show Cause Notice dated 28.04.2016 was issued covering the period April, 2011 to January, 2016 invoking extended period of limitation, seeking to deny credit of service tax paid on input services transferred to them by their head office through ISD invoice in respect of (a) Air Tra....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r of the original authority. Hence, this appeal. 5. Learned Chartered Accountant (CA) appearing for the appellant submits that in the first place with respect to some period of the demand i.e., October, 2013 to September, 2014 an SCN has also been issued to their head office who were registered as input service distributor. This SCN has been dropped by their adjudicating authority. Therefore, the very basis on which SCN is raised is doubtful. Notwithstanding this assertion, he submits that the three disputed services are air travel services, repair and maintenance service and annual maintenance charges. 6. As far as air travel services are concerned, he submits that these pertain to services availed by them for official air travel of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hereof; or b) laying of foundation of one or more of the specified services; or (B) service provided by way of renting of a motor vehicle, in so far as they relate to a motor vehicle which is not a capital goods; or (BA) service of general insurance business, servicing, repair and maintenance, in so far as they relate to a motor vehicle which is not a capital goods, except when used by - a) a manufacturer of a motor vehicle in respect of a motor vehicle manufactured by such person; or b) an insurance company in respect of a motor vehicle insured or reinsured by such person; or (C) such as those provided in relation to outdoor catering, beauty treatment, health services, cosmetic and plas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that all works contracts are not excluded from the definition of input service under Rule 2(l) of CCR, 2004. He would assert that as per clause (A) of the exclusion portion of the definition, only service portion in the execution of services of construction are excluded in so far as they are used for "construction or execution of works contract of a building or a civil structure or a part thereof or laying of foundation or making of structures for support of capital goods". He would assert that in their particular case both repair and maintenance services and AMC services are towards maintenance of office equipment and carpets etc., in their head office. The services used in office relating to the factory or premises are specifically includ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....authority. He asserts that the burden of proving that they are entitled to Cenvat credit rests upon the assessee. It is up to him to ensure that Cenvat credit is properly taken. As far as air travel services are concerned, the appellant has not demonstrated, as recorded by the first appellate authority in Para 6 of the impugned order, that they did not produce any evidence to establish that air travel was meant for official work. Further, he argues that exclusion part of the input services definition specifically covers works contract services and it is undisputed that nature of the services in this case with respect to disputed invoices included both provision of material and rendition of services. Therefore, it falls under the definition ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n question was for official work. Accordingly, I allow credit of service tax paid on air travel services. 12. As far as repair and maintenance services and AMC services are concerned, undisputedly both these pertain to contracts which involved both supply of material and rendition of services and therefore, can be considered as works contract services. However, the input invoices paid the amounts under different heads. They have not paid it under works contract services. The classification of any goods or services at the input invoice stage cannot be altered while deciding eligibility of credit to the recipient. Therefore, the classification cannot be altered in this case as well. Further, I find that the works contract services entered ....