TaxTMI 
TaxTMI 
2023 (7) TMI 631
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....n opinion that the service was ineligible for the availment of Cenvat credit under CCR, 2004. With this opinion show cause notice No. 4624 dated 03.09.2017 was served upon the appellant alleging that appellant has availed inadmissible Cenvat credit of Rs. 16,57,490/- for the period March 2015 to March 2017 on the works contract services. Accordingly, the proposal to recover the said Cenvat credit while disallowing the same and the recovery of interest alongwith the appropriate penalties was proposed vide the said show cause notice. The proposal was initially confirmed vide order-in-original No. 37/2020-2021 dated 19.02.2021. The appeal filed before the Commissioner (Appeals) against the said order has been rejected vide order-in-appeal No. 19/2021 dated 08.07.2022. Being aggrieved, the appellant is before this Tribunal. 2. I have heard Shri J.M. Sharma and Ms. Pooja Agarwal, learned Chartered Accountant for the appellant and Shri Mahesh Bhardwaj, learned authorized representative for the Department. 3. Learned Chartered Accountant for the appellant has submitted that the services availed by the appellants were in relation to the renovation, repairs, modernization of the factory o....
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.... E.L.T. 161 (S.C.) ; and (iv) Continental Foundation Jt. Venture versus Commissioner of Central Excise, Chandigarh - I reported as 2007 (216) E.L.T. 177 (S.C.). 5. While rebutting these submissions, learned Departmental Representative has mentioned that the invoices through which the appellant had received maintenance and repair services, the proposed demand has already been dropped by the Adjudicating Authorities below for remaining 235 invoices the nature of services received are mentioned to be that of erection, commissioning and installation. The services fall within the definition of works contract service which stands excluded from the definition of input services post its amendment w.e.f. 01.07.2012. Hence, there is no illegality committed by the Adjudicating Authorities below while holding the works contract service to be an ineligible input service and while denying the availment of Cenvat credit by the appellant on those services. With these submissions the appeal prayed to be dismissed. 6. Having heard the rival contentions, the moot question of adjudication appears to be as follows :- Whether the services received by the appellants can be classified as works contr....
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....ices 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 vacation such as Leave or Home Travel Concession, when such services are used primarily for personal use or consumption of any employee; Clause (b) of Section 66E (also introduced w.e.f. 1.7.2012) of the Finance Act, 1994". 8. From the perusal of both the definitions, I observe that "modernization, renovation or repairs of a factory" are appearing in the inclusion part of the definition of input service. In the exclusion part such wor....
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.... rule 2(l) of Cenvat Credit Rules, 2004 therefore, there is a direct nexus of the service mentioned in the exclusion clause and setting up of the factory. It is important to note that the legislature consciously continued the services of renovation, modernization, repairs appearing in the inclusion clause of definition of input service. This clearly shows that any service relating to modernization, renovation of the existing factory is admissible as input service which is the direct case of the appellant". 10. Earlier also in the case of Ion Exchange (I) Ltd. versus Commissioner of C. Ex., Cus. & S.T., Surat - II reported as 2018 (12) G.S.T.L. 302 (Tri. - Ahmd.) wherein it was held :- "8. A plain reading of the said provisions makes it clear that service utilized in relation to modernization, renovation and repair of the factory are definitely fall within the meaning of 'input service' even though; construction of a building or civil structure or part thereof has been placed under exclusion clause of the said definition of 'input service'. After amendment to the definition of the 'input service', a clarification issued by the Board vide Circular No. 943/4/2011-CX, dated 29-4-20....
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....ere is no denial about appellant to be regular while filing its ST-3 returns specifically mentioning the respective Cenvat credit availed. In such circumstances, there appears no such evidence which may prove the alleged willful suppression on the part of the appellants. No doubt the appellant was not required to give the details of disputed Cenvat credit in the ST-3 returns in as much as the appellant was not an output service provider, however, since appellant was duly filing the ST-3 returns where the requisite details of Cenvat credit availed including the disputed amount were given the allegations of the department of suppression appears to be debarred allegations, as held by Hon'ble Apex Court in the case of M/s Uniworth Textiles Ltd. versus Commissioner of Central Excise, Raipur reported as 2013 (288) E.L.T. 161 (S.C.) 14. In an earlier decision in the case of Continental Foundation Jt. Venture versus Commissioner of Central Excise, Chandigarh reported as 2007 (216) E.L.T. 177 (S.C.) the Hon'ble Supreme Court in para 12 has held as under : "12. As far as fraud and collusion are concerned, it is evident that the intent to evade duty is built into these very words. So far a....