2023 (10) TMI 287

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....d to them in terms of Rule 2(l) of the Cenvat Credit Rules, 2004. 2. The facts of the case are that during the course of audit for the period December 2012 to June 2013, it was observed that in course of setting up of the unit, the appellant has received services pertaining to erection, commissioning and installation of capital goods which are ineligible for cenvat credit in terms of Cenvat Credit Rules, 2004, therefore, a show cause notice dated 11.04.2016 was issued by invoking the extended period of limitation to deny the cenvat credit availed by the appellant. The matter was adjudicated and the impugned order has been passed wherein cenvat credit has been denied. Against the said order the appellant is before us. 3. The Ld.Counsel....

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.... dealt by this Tribunal in the case of Aditya Aluminium (supra), wherein this Tribunal has observed as under:- "6. We observe that the impugned order has denied the credit availed by the Appellant on the input services availed for 'setting up of a factory' as the same has been specifically omitted from the 'includes' part of the definition vide Excise Appeal No. 76293 of 2017 4 Notification No. 03/2011 dated 01.03.2011, w.e.f.01.04.2011. Thus it is necessary to look into the definition of 'input services', w..e.f.01.04.2011. 7. The relevant portion of Rule 2(I) w.e.f 01.04.2011 is as under:- "input service" means any service.- (i) Used by a provider of [output service] for providing an output ....

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....roducts". Since the subject input services are covered in the 'main clause' of the definition of input service, unless it is specifically excluded under the excludes clause of the definition, the Appellant is entitled to CENVAT Credit on the subject input services used in setting up of the factory. This view has been held by the Tribunal in the case of Pepsico India Holdings Pvt. Ltd., Vs. CCT, Tirupati, 2021 (7) TMI 1094-CESTAT Hyderabad. The relevant part of the decision is extracted below: 16. We find that the definition of 'input service prior to 1.04.2011 had two parts- a main part of the definition and an inclusive part of the Excise Appeal No. 76189 of 2018 5 definition. This inclusive part specifically included the ....

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....cillary to the completion of a manufactured product; ii) which is specified in relation to any goods in the Section or Chapter notes of the Fourth Schedule as amounting to manufacturer; or iii) which, in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labeling or re-labelling of containers including the declaration or alteration of retail sale price on Excise Appeal No. 76189 of 2018 6 it or adoption of any other treatment on the goods to render the product marketable to the consumer; the word "manufacturer" shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods,....

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....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 Excise Appeal No. 76189 of 2018 7 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. 23. In view of the above, the impugned orders denying CENVAT credit and ordering its recovery along with interest and imposing penalties cannot be sustained. The impugned orders are set aside and the appeals are....

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....below:- ................................................ 7. We thus find that services used for setting up of the factory eve after 01.04.2011 would be eligible for credit." 10. We observe that similar position has also been held in the following decisions: * Jindal Steel and Power Ltd, Vs. Commissioner of Central Tax, Rourkela vide Final order No. 75613/2023 dated 08.06.2023. * Shell India Pvt. Ltd. Vs. Commissioner of Central Tax, Bangalore North 2021-VIL-820-CESTAT-BLR-ST maintained in 2023-VIL-01-KAR-ST. *Reliance Corporate IT Park Ltd, Vs. Commissioner of Central Excise Thane-II 2023-VIL-136-CESTAT-Mum-ST. * Hindustan Zink Ltd., Vs. Commissioner of CGST, Excise & Customs, U....