TaxTMI 
TaxTMI 
TaxTMI 
2024 (11) TMI 1135
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....definition of input service under Rule 2(l), it does not adversely affected the eligibility of cenvat credit on renting of immovable property service. He submits that despite the said amendment the renting of immovable property service is clearly covered under the main clause of the definition as the same is used in relation to providing output service by the appellant. In support he placed reliance on the following judgments: Navin Flourine International Ltd. 2024 (10) TMI 1396-CESTAT Roquette Riddhi P. Ltd. 2024 (1) TMI 1210 - CESTAT General Motors India Pvt Ltd. 2023 (11) TMI 304-CESTAT 2.1 He further submits that even as per the amendment in the definition of input service in Rule 2(l) by Notification No. 3/2011-CE (NT) dated 01.03.2011 w.e.f. 01.04.2011 certain services were excluded from the definition of input service, however, the service of renting of immovable property service does not fall under the exclusion clause of the definition. For this reason also the cenvat credit is clearly admissible as held in the above judgments. He also submits that the demand was confirmed by invoking extended period under Section 73(1) of the Finance Act, 1994 however there is no d....
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....s made by both the sides and perused the records. We find that the Cenvat credit on various services were denied by the lower authority on the ground that these services are related to the "setting up of factory" which was excluded from the inclusion clause of the definition. For ease of reference the definition of input service during the relevant period that is after 01.04.2011 amendment in Rule 2(l) of Cenvat Credit Rules,2004 reads as under:- "Definition of input service w.e.f. 01.04.2011 (l) "input service" means ................; 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 The exclusion clause in theCenvat Credit Rules, 2004 was amended with effect from 01.07.2012 with a view to align the same with the changed concept of Negative List regime of services. Defi....
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....sues are squarely covered by various judgments of this Tribunal. 5. As regard the issue A on the fact there is no dispute that all the invoices were issued prior to 18.09.2014. Therefore, the 3 rd Proviso to Rule 4 of Cenvat Credit Rules, 2004 inserted with effect from 18.09.2014 shall not apply in respect of the invoices issued prior to 18.09.2014. Accordingly, on that basis the Cenvat credit could not have been dis-allowed. This issue is covered by the following judgment:- a) In the case of Roquette Riddhi Siddhi Pvt. Ltd. (supra) CESTAT Bangalore has passed the following decision:- 6.3. The second issue arises in Appeal No. E/20044/2017 is that whether the appellant can avail cenvat credit on the invoices issued prior to 01/09/2014 within six months after the issuance of the Notification No. 21/2014 CE (NT) dated 11/07/2014 or not? The said issue has been settled by this Tribunal in the case of Bharat Aluminium Company Limited wherein this Tribunal has observed as under: "5. Having expressed our anguish, we note that the issue is no more res Integra. Reliance can be placed to the following decisions; (i) Indian Potash Ltd. vs Commissioner of Central GST, Meerut [2018 (....
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....ot be given retrospective effect. As explained in Eicher Motors Ltd. v. Union of India (supra) the rule of lapse of credit lying with it unutilized on the date of amendment, cannot be applied to the goods manufactured prior to the date of the amendment. This is based on the principle that the right to adjustment of tax on final products accrues to an Assessee on the date when they paid the tax on the raw materials and that right would continue until the facility available thereto gets worked out. In fact, the judgment in Osram Surya (P) Ltd. v. Commissioner of Central Excise, Indore (supra) approvingly refers to the judgment in Eicher Motors Ltd. v. Union of India (supra). 18. In the present case, the credit accrued when CVD was paid on finished goods deemed to be cleared from home consumption when the dealers sold the goods at higher price by altering the MRP. The right to the Cenvat credit accrued on the very day when the inputs were received. 19. In Jayam & Co. v. Assistant Commissioner - (2016) 96 VST 1 (SC) = 2018 (19) G.S.T.L. 3 (S.C.), it was held that a provision introduced for the first time cannot be given retrospective effect. It is further held as under: "11. Now ....
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....lation to goods which were purchased prior to one year from the appointed day. This retrospectivity given to the provision has no rational or reasonable basis for imposition of the condition. The reasons cited in limiting the exercise of rights have no co-relation with the advent of GST regime. Same factors, parameters and considerations of "in order to corelate the goods or administrative convenience" prevailed even under the Central Excise Act and the CENVAT Credit Rules when no such restriction was imposed on enjoyment of CENVAT credit in relation to goods purchased prior to one year." 22. Consequently, in the present case, the Court is satisfied that the Amendment to Rule 4(1) CCRs prescribing a time limit for claiming Cenvat Credit will not apply to the consignments in the present case where the import took place prior to the date of the amendment and the deemed manufacture took place when the MRP was altered, which also happened prior to the amendment. In other words, the CVD paid by the BRCPL will have to be permitted to be adjusted against the CE duty settled as will the service tax paid on the input services. 5. Relying on the aforesaid decision, the appeal is allowed.....
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.... product, such services are qualified as input services and accordingly the CENVAT Credit is admissible. Considering the ratio laid down by the Hon'ble High Court and the facts of the present case, I am of the considered view that the Dredging Services used by the appellant is an input services, hence, CENVAT Credit is admissible. I also observed that merely because the service was availed outside the factory of the appellant the credit cannot be denied. Whether the service is availed in the factory or outside the factory, only requirement is that it should be in relation to the manufacture of final product, therefore, the CENVAT Credit is admissible. Accordingly I set aside the impugned order and allow the appeal." b) In the case of Swiss Galscote Equipments (Supra) this Tribunal has passed the following decision:- "4. I have carefully considered the submissions made by learned Authorised Representative and perused the records. The issue involved is whether the appellant is entitled for Cenvat Credit in respect of repair and maintenance of wind mill which is located outside the factory premises. Both the lower authorities have denied the Cenvat Credit on the ground that the wi....
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....ided on windmills installed by the respondents. The answer lies in interpretation of Rule 2(B) (k), (1) (m), 3 and 4 of CENVAT Credit Rules, 2004. The relevant Rule 2(B) (k), (1), 3 and 4 of CENVAT Credit Rules, 2004 read as under: "2(B)(k) "Input" means (i) all goods, except light diesel oil, high speed diesel oil and motor spirit, commonly known a petrol, used in or in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not and includes lubricating oils, greases, cutting oils, coolants, accessories of the final products cleared along with the final product goods used as paint, or as packing material, or as fuel, or for generation of electricity or steam used in or in relation to manufacture of final products or for any other purpose, within the factory of production: (ii) all goods, except light diesel oil, high speed diesel oil, motor spirit, commonly known as petrol and motor vehicles, used for providing any output service; Explanation 1: The light diesel oll, high speed diesel oll or motor spirit, commonly known as petrol, shall not be treated as an input for any purpose whatsoever. Explanation 2:....
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....partment of Revenue) No.214/86 Central Excise, dated the 25 th March, 1986, published in the Gazette of India vide number G.S.R.547(E), dated the 25 th March, 1986, and received by the manufacturer for use in, or in relation to the manufacture of final product on or after the 10 th day of September, 2004. Rule 4: Conditions for allowing CENVAT credit (1) The CENVAT credit in respect of inputs may be taken immediately on receipt of the inputs in the factory of the manufacturer or in the premises of the provider of output service. [Provided that in respect of final products, namely, articles of jewellery falling under heading 7113 of the First Schedule to the Excise Tariff Act, the CENVAT credit of duty paid on inputs may be taken Immediately on receipt of such inputs in the registered premises of the person who get such final products manufactured on his behalf, on job work basis, subject to the condition that the inputs are used in the manufacture of such final product by the job worker.] Rule 4(7) The CENVAT credit in respect of input service shall be allowed, on or after the day which payment is made of the value of input service and the service tax paid or payable as is in....
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....ced by the Tribunal is ex-facie contrary to the provisions contained in Rule 2 (l). The first part of Rule 2(l) inter alia covers any services used by the manufacturer directly or indirectly, in or in relation to the manufacture of final products. The inclusive part of the definition enumerates certain specified categories of services. However, it would be farfetched to interpret Rule 2 (l) to mean that only two categories of services in relation to inputs viz. for the procurement of inputs and for the inward transportation of inputs were intended to be brought within the purview of Rule 2 (1). Rule 2 (1) must be read in its entirety. The Tribunal has placed an interpretation which runs contrary to the plain and literal meaning of the works used in Rule 2 (1). Moreover as we have noted earlier, whereas Rule 3(1) allows a manufacturer of final products to take credit 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 mea....
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....that the invoices were not in the appellant's name but were [sic] in the name of branch/head office. We note that this cannot be the reason for denial of credit. There is no allegation or finding to the effect that the input services were not received by the appellant or the said services were not covered under the scope of eligible input services in terms of the Cenvat Credit Rules, 2004. In such situation, we find that the denial of credit only on the ground that the address of branch office or head office was mentioned instead of appellant's address cannot be the ground for denial of otherwise eligible Cenvat credit. On the last issue, the appellant did not categorically submit anything regarding catering service availed by them. No particulars or facts are submitted regarding the said service availed by them. In absence of any specific defence, we find no reasons to interfere with the denial ordered by the Original Authority. 7.1 In the case of Rajendra Kumar and Associates (Supra), this Tribunal allowed the credit even though the different address was mentioned in the invoices by passing the following order:- "13. In regard to Cenvat credit of Rs. 1,04,10,273/- availed by ....
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....cee that the Cenvat credit rules do not state that the premises of the recipient has to be registered preemies in order to avail the Cenvat credit, yet in view of the rules quoted herein above i.e. either rule 4 or rule 9 of CCR, the name and address of the person receiving the service is of utmost importance. In the given case the name and address of the service recipient pertains to the branch which is not registered with the jurisdictional authorities. Now, when the Cenvat credit rule gives a discretion to the deputy/ assistant commissioner to allow the credit on being satisfied that the goods of services covered by the documents have been received and accounted for in the books of account of the receiver, how can he/she can be supposed to have been convinced about the receipt of certain services which are received in the location which does not registered under in his/her jurisdiction. Hence the contention of the Noticee does not have any merit and is totally unacceptable." 15. The registration of premise with the Service Tax Department is not a condition for availing Cenvat credit. 16. The Karnataka High Court in MPortal India Wireless Solutions (P) Limited held that there....