TaxTMI 
TaxTMI 
2023 (11) TMI 1164
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....entral Excise Delhi III, Gurgaon for the period 2008-09 and 2009- 10, it was observed by the auditor that appellant has taken input service tax credit on construction services related to factory construction, electrical work, mechanical work wherein the contractor has given the Invoices for entire work under the Construction Services. The Assistant Commissioner has taken the data from period 2006 to Dec. 2010 and issued Show Cause Notice for inadmissible credit amounting to Rs 52,61,184/- wrongly availed by the appellant alongwith interest in accordance to Rule 14 of Cenvat Credit Rules, 2004 read with Section 11 AB of the CEA, 1944. * After following due process, the Ld. Commissioner has confirmed the demand. * Aggrieved by the said order, the appellant filed the present appeal. 3. Ld. Consultant appearing for the appellant submits that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law and the definition of 'Input Service' as provided under Rule 2(l) of CCR, 2004. He further submits that the Ld. Commissioner has confirmed the demand mainly relying upon the CBEC Board Circular No. 98/1/2....
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....ents Ltd. 2019 (370) ELT 568 (Tri.-Chennai) * Commissioner of CGST & Central Excise, Lucknow vs. DSCL Sugar 2019 (367) ELT 836 (All.) * Mundra Ports & Special Economic Zone Ltd. vs. CCe & Customs 2015 (39) STR 726 (Guj.) * India Cements Ltd. Vs. CESTAT Chennai 2015 (321) ELT 209 (Mad.) * Commissioner of Central Excise, Lucknow vs. Mankapur Chini Mills 2019 (367) ELT 889 (ALL.) He further submits that the definition of 'Input Service' as provided in Rule 2(l) of CCR, 2004 was amended by way of Notification No. 03/2011-CE dated 01.03.2011 and thereafter the cenvat credit of input services relating to construction of setting up of plant was not available after 01.04.2011 but the period involved in the present case was from 2006 to 2010 and during that period, the cenvat credit was very much available for construction of the factory building. 4. On the other hand, the Ld. DR reiterated the findings in the impugned order. 5. After considering the submissions of both the parties and perusal of material on record, we think that it is pertinent to reproduce the definition of 'Input Service' during the relevant period and after amendment from 01.....
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....ansportation of Inputs or capital goods and outward transportation upto the place of removal: but excludes services.- (A) specified in sub-clauses (p), (zn), (zzl). (zzm). (zzq), (zzzh) and (zzzza) of clause (105) of section 65 of the Finance Act (hereinafter referred as specified services), in so far as they are used for- (a) construction 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) specified in sub-clauses (d), (o), (zo) and (zzzzj) of clause (105) of section 65 of the Finance Act. in so far as they relate to a motor vehicle except when used for the provision of taxable services for which the credit on motor vehicle Is available as capital goods; 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 ....
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....hat it was not the appellant's case that the services were not used for the setting up of the factory. The doubt in this regard is set at rest by the second part of Section 2(l)(ii) which includes within the ambit of the words 'input service' the setting up of a factory and the premises of the provider of the output service. The inclusive definition, therefore, puts the matter, at least so far as the payment for services rendered by the civil contractor for setting up the factory is concerned, beyond doubt. As the plain language of Section 2(l)(ii) indicates, the services mentioned therein are only illustrative. The words "includes services" establish the same. It can hardly be suggested that the lease rental is not for the use of the land in relation to the manufacture of the final product." 8. Further, this issue has also been considered by this Tribunal in the case of Carrier Airconditioning & Refrigeration Ltd. cited (supra) wherein this Tribunal has held as under:- "7. The input credit in respect of construction service has been denied on the ground that the same is not related to modernisation, renovation or repair of factory and has no nexus with the manufacturin....