TaxTMI 
TaxTMI 
2022 (4) TMI 729
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...., commission, installation service and works contract service in dispute were rendered under 81 contracts by 41 contractors/ service providers. The Appellant have not availed any credit in respect of services used for laying of foundation or for making ofstructures for support of capital goods. The only credit on Fabrication of structures that has been availed by them in respect of pipes supports to the tune of Rs. 33,60,790/- as the said pipe supports are themselves regarded as capital goods as per the definition of " Capital Goods" under rule 2(a) of Cenvat Credit Rules, 2004, being pipes or tubes fittings. Likewise, the appellant has also not availed any credit on Construction service or Works contract service in so far as they are used for construction or execution of works contract of building or a civil structure or of a part thereof. The contracts for laying of foundation or making of structures for support of capital goods were separatelyplaced or were separate line items/ deliverables in the contracts, in respect of which credit to the tune of Rs. 275,05,12,910/- has not been availed in respect of the J3 Project. The contracts for installation of machinery as a....
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....r the head of ECIS. The Adjudicating Authority has however in para 20.12 in the impugned order held that the services availed by the appellant and recorded as ECIS are correctly classifiable as construction service which has been used by the appellant for making of structure for support of capital goods. 2.2 He submits that these findings of the Adjudicating Authority is not contrary to his own finding in para 21.10 where he admits that service provider has correctly classified services but is also at oddwith the law laid down by the Hon'ble Supreme Court in the case of CCE vsMDS Switchgear Ltd reported in 2008 (229) ELT 485 (SC) and SarveshRefactories (P) Ltd vs CCE reported in 2007 (218) ELT 488(SC) to the effect that the authority having jurisdiction over the end of recipient cannot question the classification of service. 2.3 He submits that as against the appellant's contention that once the classification of services in the present case under ECIS and WCS was finalized at the service provider end, the same cannot be disturbedat the service recipient end, the revenue's contention is that with effect from 01.07.2012 there is no requirement of classification of ....
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....service prior to and subsequent to 01.07.2012 is the same. He submits that ECIS and WCS (in respect of ECIS) was never excluded from the scope and ambit of the input service both prior to 01.07.2012 and subsequent to 01.07.2012. Accordingly even as per reasoning canvassed by the revenue the exclusion clause in the definition of input service could not have covered ECIS thus the entire basis of the revenue to dispute availment of credit is untenable. 2.6 He referred to the definition of construction service under clause 30 (a) which was first taxed under Finance Act, 1994 with effect from 10.09.2004. He further submits that the legislature sought to also taxconstruction of residential complex services completely, it is for this reason that in the head of "construction service", a prefix "commercial or industrial" was added to distinguish it from Construction of a residential complex service. He further submits that it is the contention of the revenue that ECIS is an integral part of Construction Service and is thus covered by the exclusion clause. This contention of the revenue overlooks the fact that legislation has chosento tax the construction service as a di....
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....would be classifiable under WCS. Therefore the contention of the revenue that WCS covers ECIS and CICS is therefore legally untenable as the services of WCS are completely distinct and different from CICS and ECIS. He submits that the revenue's reliance on the CBIC circular No 80/10/2004-ST dated 17.09.2004 which clarified that erection involves civil work which would otherwise fall under the category of constructions service. However in the case of composite contract of erection commission and installation the erection charges would be termed as ECIS service. The circular does not further the case of the revenue in as much as undisputedly there is no civil work that any of the contractors were required to undertake as part of the ECIS. The activity of civil construction was covered by separate work order and/or separately deliverables or the appellant undertook the same by itself. The services in respect of which the credit has been availed which was classified as ECIS did not have any element of civil construction in the same. Therefore, the circular has not adversely affected the eligibility of Cenvat credit on ECIS to the appellant. 2.9 He further submits that the acti....
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....rks Contract Service used for making of structurefor support of capital goods is concerned no Cenvatcredit was availed on any activity of fabrication of technological/industrial structures. The only credit with respect of fabrication that has been availed is in respect of pipes supports which are nothing but pipe fittings and are covered in the definition of capital goods under 2(a) of Cenvat credit rules, 2004. The entirety of the Credit availed by the appellant was only for installing and commissioning the said structure which cannot be said to be the activity of making of structures for support of capital goods. Further, as dealt in the later part the structure which were installed and commissioned were parts, component and accessories of capital goods and were therefore themselves capital goods as per the clause (iii)of 2(a) of cenvat credit rules , 2004. Thus, even the contract for fabrication in respect of which credit was not availed, the same was not making of structure for support of capital goods. 2.12 He submits that the Adjudicating Authority has failed to appreciate that activity of fabrication, erection and installation und....
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....ificial manner that traverses beyond the scope of the allegations made in the notice. He submits that this allegation does not exist in the SCN therefore, this contention is bereft of any merits. He submits that the Adjudicating Authority has alleged that the erection, commissioning and installation of technological structures can be said to be making of structure for support of capital goods. It is his submission that none of the said industrial /technological structures have been used for support of any capital goods. The said structure which were being erected and installed are gratings, cable trays, platforms, ladders, staircases, access structures, handrails etc which are nothing but parts, accessories or components of the capital goods and are thus covered by the definition of capital goods. He takes support of the Hon'ble Delhi High Court judgment in the case of Vodafone Mobile Services Ltd vs. CST reported in 2019(27) GSTL 481(Del.). He also placed reliance on the following judgment in support of his submission that the ....
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.... inapplicable from 01.07.2012 vide section 66B; all services except in Negative List were chargeable to uniform rate. Section 66D provided the list of Negative List. In ST-3 Return, in column A9, the "Taxable Services for which tax is being paid" was mentioned without the need of specifying any classification for the services. In the instructions to file the ST-3 return, it was mentioned -"Though with effect from 01.07.2012 classification of services has been dispensed with, the assessee is required to mention the name of taxable services as per Annexure enclosed with this return. 3.2 As there was no requirement of classification of services during the period under dispute, the question of any classification at the end of the supplier and reclassification at the end of the recipient does not arise and is not warranted. In view of this position, the argument of traversing beyond the jurisdiction by the Respondents is nullified. As regard the contention of the appellant that Erection, Commissioning and Installation and works contract services received by the appellant are not construction service and rel....
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....e availed and how much cannot be availed. It appears that the appellant has in case of a single works order by mentioning fabrication and ECI as separate deliverables, split the credit paid at the service provider end in an artificial manner. The appellants claim they have not availed the service tax paid on Fabrication but availed the same on the ECI. In other words they themselves have considered the corresponding credit as not available to them under the exclusion clause of section 2(l) of Cenvat credit Rules, 2004. It is submitted that the fabrication service and ECI service being a part of the same works order, will be covered by construction service, and whole tax paid by the supplier will be ineligible as credit at the appellants end in terms of exclusion clause of 2(a). In other words a service covered by a work order cannot be vivisected for any taxing purpose. 3.6 As regardthe contention of the appellantthat the Industrial construction erected and installed in the instant case are not civil structures. He submits that the term civil structure has been used in the Finance Act, 1994 from the period even prior to 2012. The same has never been defined in ....
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....itted that the same should be seen in the light of artificial division of the work orders and the applicant's awareness about the ineligibility of credit on fabrication. In the finding portion it has been mentioned that the appellant,in their cenvat credit account has mentioned the details of credit taken under the broad head of 'ECI' and "Works Contract ". It is further mentioned that this wilful suppression was found only when they submitted the information on 08.05.2019 during the course of audit. Therefore it is clear that the Adjudicating Authority has not established the suppression of facts on the basis of late submission of the information at the time of audit. It has only been mentioned that the suppression of fact resorted by the appellant came to notice at the time of audit when the required information was submitted after much persuasion by the department. He placed reliance on the following judgments: • Mahindra Sona Ltd Vs. CCR, Nashik -2016-TIOL-1174-CESTAT-MUM • Tiken India Ltd Vs. CCE , Jamshedpur - 2019-TIOL-641-CESTAT-KOL • CCE, Ghaziabad Vs. Rathi Steel & Power Ltd - 2015 (321)ELT 200 (ALL) 4. We have c....
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....s 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 plastic surgery, membership of a club, health and fitness centre, life insurance, health insurance and travel benefits extended to employees on vacation such as Leave or Home Travel Concession, when such services are used primarily for personal use consumption of any employee.] [Explanation- For the purpose of this clause, sales promotion includes services by way of sale of dutiable goods on commission basis.]" 4.1 The contention of the adjudicating authority is that the services of ECIS were used for construction of building or a civil structure therefore, the services of ECIS falls under the exclusion clause provided under Clause A of Rule 2 (l) of Cenvat Credit Rules, 2004. In this regard it is necessary to first understand the nature of the capital goods/ structure for whic....
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....the definition of input service under Rule 2 (l) some specific services are still continued. If the contention of the Adjudicating Authority taken as correct then the significance of specific service provided under definition of inputservice will lose meaning. Therefore, the meaning of construction service given in the definition of Finance Act, 1994 even prior to 01.07.2012 willhold goodfor interpretingthe term construction. As per the Finance Act, 1994 the meaning of term construction is as under: [(25b)"Commercial or Industrial Construction" means - (a) construction of a new building or a civil structure or a part thereof; or (b) construction of pipeline or conduit; or (c) completion and finishing services such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services, in relation to building or civil structure; or (d) repair, alteration, renovation or restoration of, or similar services in relation to, bui....
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.... contract. Therefore, the ECIS alone will not fall in the construction service. 4.5 As per the exclusion clause construction of civil structure or making of structure for support of capital goods are excluded. Other than these activities no other activity is covered by the exclusion clause. We agree with the submission of the appellant that in the present case the principle of Ejusdem Generis is applicable whereby the expression civil structure is reference to a structure constructed using steel and cement there being undisputedly no such construction of civil structures being undertaken by the appellant, therefore, the exclusion clause will not apply. The Revenue's reliance on Wikipedia in support of the contention that ECIS is construction is also not tenable. In view of law laid down by Hon'ble Supreme court in the case of CC vs.Acer India Pvt Ltd reported in 2007(2018) ELT 17 (SC) wherein it has been held that Wikipedia is not an authentic source of data and is thus unreliable. We find that the more authentic authority to understand the term construction is the Finance Act, 1994 itself whichwill obviously prevail over the....
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.... falling under capital goods. They have availed credit in respect of ECIS therefore; no credit was availed in respect of fabrication of structure for support of capital goods. As per the contract there are clear identified separate deliverables i.e. for construction of civil structure and fabrication, erection and installation provided by the contractors/service providers merely because one contract/ work order embodied several separate deliverables and service providers has paid service tax separately on individual activity cannot be clubbed and treated as composite activity. Therefore, we are of the view that different deliverable i.e. Fabrication, Erection and Installation is an independent activity and the same does not fall under the exclusion clause. The appellant have admittedly not availed cenvat credit which amounts to Rs. 275 Crores in respect of other deliverables such as construction of civil structure and fabrication of structure for support of capital goods. The appellant taken credit only in respect of Erection, Installation of technological structure which are other than civil structure or structure for support of any capital goods. Therefore the ECIS in the present....
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....ed that the services received by the appellant is classified as "Erection, Commissioning and Installation service". I find that above exclusion clause 'A' in Rule 2(l) of the Cenvat Credit Rules, does not cover the service in the nature of "Erection, Commissioning and Installation service". 5. In these circumstances, I find no merit in the impugned order and the same is set aside and the appeal is allowed." • RASHTRIYA ISPAT NIGAM LTD VS. CCE -2016 (44) STR 1360( Tri.- Hyd) "6.The Invoice No. 01/01, dated 9-2-2013 shows the description of service as 'works contract service'. The description of the work mentioned in the invoice is 'underground and over ground pipe works'. The credit availed is Rs. 13,84799/-. The credit has been denied on the ground that the definition of input service w.e.f. 1- 4-2011 excludes the services availed for construction or execution of works contract of a building or a civil structure or a part thereof. The issue that arises for consideration is whether the works of laying of pipes comes within the ambit of works contract which is expressly excluded in the definition of input services. For better appreciation, t....
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....m the definition of construction service provided in under Section 65(25b) of the Finance Act, 1994, which is as under :- "Commercial or Industrial Construction" means - (a) construction of a new building or a civil structure or a part thereof; or (b) construction of pipeline or conduit; or (c) completion and finishing services such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services, in relation to building or civil structure; or (d) repair, alteration, renovation or restoration of, or similar services in relation to, building or civil structure, pipeline or conduit. 8. In the above definition, the two services are given under two different sub-clauses which means that construction of pipeline or conduit cannot be considered to be part of construction of building or civil structure. Similarly, sub-clause (b) of definition of works contract service contained in sub-clause (zzzza) of Section 65(105) of the Finance....
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....ructure are different than construction of laying of pipeline and would not come under the exclusion clause (a) above i.e. construction or execution of works contract of a building or civil structure. 11. In the said judgment, the credit availed of service tax paid on construction services for laying pipeline was held to be admissible. A plain reading of the definitions noticed above makes it sufficiently clear that laying of pipeline is different from construction of building or civil structure. Undisputedly, in the present case, the service tax was paid on works contract for laying pipe over the ground and under to supply water to the raw material plant. From the above discussions, I am able to hold that appellant is eligible for credit on service tax paid on works contract services relating to erection/construction of underground pipe and over ground pipelines for supply of water to raw material plant as the work of construction of pipeline or conduit do not fall in the exclusion portion of the definition of input services. 12. The second issue is whether the appellant is liable to pay interest on the amount of credit of Rs. 10,39,634/- which was re....
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....n or in relation to the manufacture of final products is eligible for credit. The admitted fact is that the services received by the appellants in the present case are not falling under any exclusion clause. The Revenue disputed that the pipeline related services are not having any nexus with the manufacture of paper by the appellants. In this context, it is to be seen that for the appellant, water is one of the main input items used in the manufacture of paper. Admittedly, water is being transported from outside by a pipeline laid and maintained by the appellant. "Input Services" to be eligible for credit is not linked to any location for receipt of such services. The Hon'ble Bombay High Court in case of Deepak Fertilizers & Petrochemicals Corpn. Ltd. - 2013 (32) S.T.R. 532 (Bom.) examined the scope of "Inputs Services" and held as under :- "5. Now at the outset it must be noted that Rule 3(1) allows a manufacturer of final products to take credit inter alia of Service Tax which is paid on (i) any input or capital goods received in the factory of manufacturer of the final product; and (ii) any input service received by the manufacturer of the final product. The subordinat....
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....d for the inward transportation of inputs were intended to be brought within the purview of Rule 2(l). Rule 2(l) must be read in its entirety. The Tribunal has placed an interpretation which runs contrary to the plain and literal meaning of the words used in Rule 2(l). Moreover as we have noted earlier, whereas Rule 3(1) allows a manufacturer of final products to take credit of excise duty and Service Tax among others paid on any input or capital goods received in the factory of manufacturer of the final product, insofar as any input service is concerned, the only stipulation is that it should be received by the manufacturer of the final product. This must be read with the broad and comprehensive meaning of the expression 'input service' in Rule 2(l).The input services in the present case were used by the appellant whether directly or indirectly, in or in relation to the manufacture of final products. The appellant, it is undisputed, manufactures dutiable final products and the storage and use of ammonia is an intrinsic part of that process." 6. The Tribunal in Welspun Maxsteel Ltd. - 2013 (31) S.T.R. 64 (Tri.-Mum.) upheld the credit on security services received in connec....
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....tion 11AB of the Act was also ordered. 6. Aggrieved by the above order-in-original, the assessee preferred an appeal before the Tribunal which has been accepted by the impugned order. Revenue, being aggrieved, has filed the present appeal. 7. The Tribunal has come to the conclusion that in fact there was no loss of revenue. It accepted the appeal by recording the following reasons : "Reasons given by the appellants for the alleged inflation of the value of the intermediate goods are logical. What was required of the Commissioner was to examine the quantum of the loading of the assessable value by the Modvat credit on the earlier inputs. That exercise has nowhere been done. If the department was of the opinion that the value of the final product was depressed, then they could have charged the Jalgaon unit with under- invoicing of their product. That has also not been done. The valuation as given by the Sinnar unit was duly approved by the department and the payment of duty was also duly accepted. We find absolutely no substance in the attempt of the learned Commissioner to convert a part of the duty so paid into 'deposit of duty'. There is no l....
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.... by setting aside the order of the Commissioner (Appeals) and restoring that of the authority-in-original. It was held that the 'Loadall' having been classified by the Central Excise Officer having jurisdiction over the manufacturer's factory as falling under Heading 84.29, the appellant, who is the consumer of those goods, could not get the classification of the manufacturer changed from 84.29 to 84.27. 6. The finding recorded by the Tribunal is unexceptionable. We agree with the view taken by the Tribunal that the appellant could not get the classification of 'Loadall' changed to Heading 84.27 from 84.29, as declared by the manufacturer. Insofar as the penalty imposed by the authority-in-original is concerned, we are of the view that a case for imposition of penalty is not made out and accordingly the same is set aside and deleted. Rest of the order of the Tribunal restoring the order of the authority-in- original is confirmed. 7. Counsel for the appellant has raised an alternate argument on the interpretation of Rule 57Q of the Rules which had not been raised either in reply to the show cause notice or before any of the authorities below. Under the ....
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...., the appeal is dismissed." • NEWLIGHT HOTELS & RESORTS LTD Vs.COMMR. OF C. EX. & S.T., VADODARA- 2016 (44) S.T.R. 258 (Tri. - Ahmd.) "5. In view of the above interpretation of law made by the Courts, including the Apex Court, no option is left with the Revenue to change the classification/ assessments of the services at the service recipient's end. The service tax paid by M/s. IHCL was at the behest of the department and was not altered during the disputed period. Credit of service tax paid on the invoices cannot be denied or utilisation reduced on the grounds that classification of the services was wrongly done at the service provider's end. Appeal filed by the appellant is thus required to be allowed on this ground alone. We have not considered the other issues raised by the appellant regarding utilisation of accumulated credit after 1-4-2008 or the time barred nature of the demands. 6. Appeal filed by the appellant is allowed." 4.9 In view of the above judgments, the classification of service i.e. ECIS attained finality at the appellant's end and this be so the same does not fall under the exclusion category hence, the credit is adm....
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....een levied only on 40% of the total value, it essentially means that service tax has been paid only on the service portion." * ION EXCHANGE (I) LTD. Vs. COMMISSIONER OF C. EX., CUS. & S.T., SURAT-II- 2018 (12) G.S.T.L. 302 (Tri. - Ahmd.) "6. The short issue involved for determination in the present case is : whether the appellants are eligible to credit of Service Tax paid on 'construction service' relating to modernization/renovation of their factory. 7. It is the contention of the Revenue that after amendment to the definition of 'input service' all 'construction service' undertaken within the factory premises fall outside the scope of the said definition, accordingly, Service Tax paid on 'construction service' is not admissible to credit. The appellant, on the other hand, submits that on deletion of words 'setting up' from the scope of said definition, new construction undertaken, would no longer be eligible, however, the construction relating to 'modernization, renovation or repair' of the existing plant and machinery inside the factory premises is definitely continued to fall within the ambit of said definition. Consequently, the Service ....
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....inafter referred as specified services) in so far as they are used for - (a) construction or execution of works contract of a building or a civil structure or a part thereof; or (b) laying of foundation or making of structures for support of capital goods, except for the provision of one or more of the specified services; or (B) services 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 plastic surgery, membership of a club, health and fitness centre, life insurance, health insurance and travel benefits extended to employees on vacati....
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....e services are not per se for "construction of building" or "setting up of premises" and these are merely renovation/modernization works. The services in the table show that these are construction services for laying the flooring, Erection of Machinery, Electric Installation Works, Single Leaf Door, Installation Boom Barriers, Electrical Consultancy Charges. Since these services would fall within the category of modernization, renovation services which come within the inclusive part of the definition of input services, I am of the view, that the services are eligible for credit. The judgment in the case of Infosys Ltd. v. CST, Bangalore (supra) is also applicable to the said issue. In para 5.8 of the said judgment, the Tribunal held that after 1-4-2011 services used in modernization, renovation or repairs alone would be admissible for credit." • MAHLE ENGINES COMPONENTS INDIA P. LTD Vs. COMMR. OF C. EX., INDORE -2018 (363) E.L.T. 1150 (Tri. - Del.) "6. With regard to the availment of Cenvat credit of the Service tax on painting of the factory building & machinery, I find that the Authorities below have denied Cenvat credit on the ground the construction of bui....
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....to be established that there was wilful suppression at the time when the credit was availed by an assessee and not on the basis of what information was furnished or not furnished by the assessee at the time of audit. We find that the information sought for during the audit was details of Cenvat credit on the service availed in relation to construction of civil structure and for support of capital goods. As per the submission of the appellant, it is their bona fide belief that no credit whatsoever has been availed by it on any construction services let alone the service which has been used for construction of civil structures or for making the structure for support of capital goods would not have furnished the information called for. Therefore, it cannot be said that the appellant have suppressed the fact wilfully with intent to take wrong cenvat credit. We further find that the issue involved is of interpretation of exclusion clause given in definition of input service under Rule 2(l) and it is also observed that the said exclusion clause invited a plethora of litigation. In these circumstances, it cannot be said that the appellant have wilfully suppressed the facts with intent to ....
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.... of petals / segments by hydraulic methods of all MOCs and install accessories as per the drawings and specs, walk ways, stair case, treads and platforms. Install Fire fighting, feam system, sprinklers as per the specs. Complete all the works as per IFC & QAP. Erection of tank Includes install accessories as per the drawings and specs, walk ways, stair case, treads and platforms. Install Fire fighting, foam system, sprinklers as per the specs. Complete all the works as per IFC & QAP. Photograph Structure is another essential part of equipment which enables supporting and bridging between various equipment to hold the piping and also to get access platforms for operation & maintenance works. All these are achieved by erecting structures. Some structures are housing equipment which are connected by processes. Some structure are built to enable operational support in reactors, Fin fan coolers. Access platforms, cage ladders, working platforms, staircases, etc. are housed in and around equipment. Bridges that connect technological structures, various pipe racks, etc. Structure Fabrication includes Material receipt from CMC to fabrication location, Marking,....
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....and drops during installations and maintenance purposes Photograph Blasting and painting work Blasting is done to clean the surface of structural or piping section prior to Primer paint. Primer paint is a preliminary layer of coating that is applied on the material prior to the paint. Primer enhances the durability and life of paint Paint is the most commonly used material to protect steel For structures Blasting & painting is carried out on structural members for protection against corrosion S Scanned S CamScanner Document 4 Broad nature of Work undertaken by various Service Providers under Service Categories - "Erection, Commissioning and Installation" and "Works Contract" are as below: Sr No For pipes Description of Work For platform 10 Insulation job (piping and others) 11 Instrumentation works 12 Slag handling system-installation 13 Electrical works Detailed Work Description Blasting & painting is carried out on spool for protection against corrosion. Blasting & painting is carried out on platform structure for protection against corrosion. Insulation is fundamentally used for heat conservation. Heat ....
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....al facilities b. Construction power network Cable lining (33KV) To operate various equipment during construction phase temporary construction power is required that can be obtained through DG sets. Cable laying is the activity of laying of cable between various electrical equipment. d. Sub-station & compressor electrical work Substation electrical works include Erection of Various Panels, Cable tray laying, Cable laying for distribution of electrical power to the plant. 14 Occasionally controlled bolting/hydraulic torque tightening work 15 15 Scaffolding work Torque is the application of a Force acting at a radial Distance and tending to cause rotation. Torque is used to create p tension in threaded fasteners. When the nut and bolt are tightened the two plates are clamped together. The thread converts the applied Torque into tension in the bolt shank. Scaffolding Work is Temporary platform used to elevate and support workers and materials during the construction, repair, or cleaning of a structure or machine, it consists of one or more planks of convenient size and length, with various methods of support, depending on t....