TaxTMI 
TaxTMI 
2023 (4) TMI 601
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....g original unit on a single piece of land. 3. The appellant vide letter dated 23.01.2014 had approached the department for granting common registration in respect of both the original unit as well as MGU. Initially the Original Registration Certificate was amended on 31.01.2014 so as to include the extended unit, MGU, however the department subsequently changed its stand and challenged the said order. The issue of registration was finally decided both by the Tribunal as well as by the High Court of Rajasthan vide order dated 06.11.2015 and 25.05.2016 respectively, in favour of the appellant whereby the common registration granted was approved. 4. On examination of the monthly ER-1, it was noticed that the appellant had availed the cenvat credit on input services which were actually used by them in the setting up of their new unit MGU which is not admissible after amendment of the definition of input service w.e.f 01.04.2011. On examining the details, it was observed that the appellant had included all the bills and payments made from October 2013 to 03.02.2014 in respect of various services specified though the commercial production started only from 24.02.2014, which means that ....
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.... been commonly registered as part of the main unit by issue of a common registration, any credit which would have been in the books of MGU would stand merged with that of the combined unit. There is no requirement in the Cenvat Credit Rules that prohibits a common Cenvat account for all the units comprised in one registration. We note that the Hon‟ble Madras High Court in the case of Rajshree Sugars & Chemicals Ltd., -2014 (299) ELT 277 (Mad.) (supra) has considered a case where the facts are similar to the present case stands decided in favour of the assessee. The Madras High Court considered a case where a sugar unit and distiller unit had separate registration certificates, but situated within the same premises under the same management. The dispute in that case is also with reference to issue of a single registration and merger of credits in the two units. The Hon‟ble Madras High Court decided the issue as follows: "We agree with the contentions made by the ld. Counsel appearing for the assessee. As already seen in the preceding paragraph, the sugar unit and the distillery unit belonged to the self-same management and they are in the same premises. Although there ....
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....-Tech Pvt. Ltd., (Vice-Versa) -2019 (7) TMI 1651 -CESTAT Kolkata, Kellogs India Pvt. Ltd., vs. Commissioner of Central Tax, Tirupathi GST -2020 (7) TMI 414 -CESTAT Hyd., PepsiCo India Holdings (Pvt.) Ltd. vs. Commissioner of Central Tax, GST, Tirupati -2022 (56) GSTL 22 (Tri. Hyd.) and Hindustan Zinc Limited vs. Commissioner of CGST, Excise Customs, Udaipur -2021 (8) TMI 872 -CESTAT-New Delhi after considering the provisions of section 2 (l) of the Finance Act, 2004 both pre and post amendment. 10. Referring to these decisions, the submission of the learned Counsel for the appellant is that omission of the words 'setting up' from the inclusive clause of the definition of 'input service' does not render the credit on services used in relation to plant and machinery ineligible. He further relied on the principle enunciated in the various decisions, to say that the Appellant is eligible for cenvat credit on the input services under the means clause "used in or in relation to the manufacture of final product" of the definition of input service even after the amendment in the definition of the input service as the 'means clause' continues to be the same as befor....
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....ax paid on services used in setting up of the plant. After 1.4.2011, the definition was revised and it had three parts, the main part, an inclusion part and an exclusion part. The cenvat credit on input services used in setting up of the plant was neither in the inclusive part of the definition nor in the exclusive part of the definition. However, he would argue that these services were necessary to set up the plant and manufacture the goods. Thus, these services are directly connected to the manufacture of the goods and hence they are covered in the main part of the definition of the „input service‟ after 1.4.2011 and therefore credit is available even though such services were no longer specifically in the inclusive part of the definition. Such a view was taken in the case of Kellogs by this Bench and in other cases cited above. He, therefore, prays that the appeals may be allowed and the impugned orders may be set aside. 12. Learned Departmental Representative vehemently opposes these arguments and supports the impugned orders and asserts that since the services related to setting up of a factory were removed from the inclusive part of the definition, it would mean....
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....facture (i.e., in relation to „a‟ and „b‟ above); 22. All four of the above qualify as input service as per Rule 2(l) (ii) as applicable post 1.4.2011. Although setting up the factory is not manufacture in itself, it is an activity directly in relation to manufacture. Without setting up the factory, there cannot be any manufacture. Services used in setting up the factory are, therefore, unambiguously covered as „input services‟ under Rule 2 (l) (ii) of the CENVAT Credit Rules, 2004 as they stood during the relevant period (post 1.4.2011). The mere fact that it is again not mentioned in the inclusive part of the definition makes no difference. Once it is covered in the main part of the definition of input service, unless it is specifically excluded under the exclusion part of the definition, the appellant is entitled to CENVAT credit on the input services used. This Bench has already taken this view in Kellogs. Similar views have been taken by the other Benches in the other cases mentioned above." (emphasis supplied) 39. It needs to be noted that in Kellogs India Pvt. Ltd vs. Commissioner of Central Tax, Tirupathi9 , the Tribunal observed:-....
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...., 1994, the Tribunal in Reliance Industries Ltd., vs. CCE&ST Rajkot -2022 (4) TMI 729 CESTAT Ahmedabad, held:- "4.4 From the above meaning of construction it is clear that the construction means commercial or industrial construction of a building or a civil structure or a part thereof. However, the exclusion provided in the definition in respect of roads, airports, railway, transport terminal, bridge, tunnel, and dam etc. further reinforce the contention of the appellant that only those constructions which is in respect of building and civil structure will fall under construction. However, in the present case the ECIS services were not used for construction of building or a civil structure, it is admittedly used for erection installation of plant and machinery therefore the ECIS were not used for construction of building or civil structure". ---- There is no dispute that the ECIS service is in respect of technological, mechanical or industrial structure, the fabrication of such structure by any stretch of imagination cannot be construed as construction of civil structure. As per the Finance Act, 1994 reference to civil structure is construction using still, cement, sand etc. ....
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....eport, engineering, designing and project management consultancy services in relation to work of erection and commissioning of equipment in MGU (Credit Rs. 4,97,609) * Pepsico India Holdings Pvt. Ltd. v. Commissioner of Central Tax, Tirupati, 2022 (56) GSTL 22 (Tri-Hyd.) * Dy. General Manager, Tata Motors Ltd. Vs. CCE, 2015 (40) STR 269 (Tri.-Mumbai) * Hindalco Industries Ltd. v. CCGST, Jabalpur, 2019 (5) TMI 1620 - CESTAT NEW DELHI * Unique Chemicals v. CCE & ST, Vadodra-II, 2019(8) TMI 200-CESTAT Ahmedabad Erection, Commissioning and installation services for installation of plant and machinery. (Credit Rs. 83,56,361) * Orient Cement Ltd. v. CCE, Hyderabad, 2017 (51) STR 459 (Tri.-Hyd.) * CCE, Kolkata v. Texmaco UGL Rail, 2019 (7) TMI 1651 - CESTAT KOLKATA * Hindalco Industries Ltd. (Supra) * Unique Chemicals (supra) * Mukund Ltd. v. Commissioner of Central Tax and Central Excise, Belgaum, 2019(3) TMI 1422-CESTAT Bangalore Manpower Supply Agencies services for deploying manpower for erection and installation work of equipments etc. (Credit Rs. 2,90,793) * Pepsico India Holdings Pvt. Ltd. (supra) * Jaypee Rewa Plant v. CCE,2018 (9) TMI 633....
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.... in Rule 2(l) w.e.f. 01.04.2011 is prospective in nature. So far as the decision in Vikram Cement vs. CCEx., Indore -2009 (242) ELT 545, is concerned, the Bombay High Court was dealing with the issue whether welding electrodes can be called as „inputs‟ in terms of Rule 2(k) of Cenvat Credit Rules, 2004, therefore, no reliance could be placed on the said judgement. Similarly, the other case law Shriram General Insurance Co. Ltd., vs. Commissioner of C. Ex., Jaipur-I - 2021 (44) GSTL 185 (Tri. Del.), Herrenknecht India Pvt. Ltd., vs. Commissioner of GST & Central Tax, Chennai -2019 (28) GSTL 243 (Tri. Chennai), Empire Industries Ltd., vs. Commissioner of C.Ex. Mumbai-III - 2018 (15) GSTL 274 (Tri. Mumbai), India Cements Ltd., vs. Commissioner of C. Ex. & S.T. Guntur -2016 (45) STR 557 (Tri. Hyd.) and also in Toyota Kirloskar Motor Pvt. Ltd., vs. Commissioner of Central Tax -2021 (55) GSTL 129 (SC.), referred to by the learned Authorised Representative are clearly distinguishable in view of the issue involved therein. We do not agree with the plea of per incuriam raised by him relying on M/s Case New Holland Construction Equipment (I) Pvt. Ltd., vs. CC Ex., Ujjain 02021 (8....