TaxTMI 
TaxTMI 
2025 (11) TMI 935
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....ons was issued. On basis of information provided Show Cause Notice dated 12 February 2018 was served alleging that Services procured for setting up of a factory by the Appellant are not eligible for cenvat credit as the same are not covered under the definition of 'input service' w.e.f. April 1, 2011. Services under question in the instant case are of the nature of consultancy, erection, commissioning and installation etc. procured and used in 'setting up' of factory i.e, before the commencement of manufacture of final products. After due process, the Adjudicating confirmed demand. Being aggrieved by the impugned order, the appellant is before the Tribunal. 2. The Ld Counsel, representing the appellant makes the following submissions: 2.1 The Appellant submits that by way of the amendment bought forth from 1 April 2011, the words 'setting up' were deleted from the inclusive portion of the definition and an exclusion portion was introduced. For the period of April 2011 to June 2012, the definition of input service excluded certain specified services in so far as they were used for construction of a building or civil structure or part thereof. However, from July 2012, the conce....
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.... Amount No. 578 dated 12 February 2018 January 2013 to February 2014 34,86,06,691 No. 4040 dated 26 April 2018 2013-2014 to 2014-2015 16,88,52,866 2.5 It is submitted that demand of INR 5,52,52,703 is common is both the show cause notices, ie, the demand is raised on same invoices in both the notices, hence there is a duplication of demand. It is a settled position of law that a SCN cannot be issued on the same amount under two different proceedings. In this context, reliance can be placed on the decision of the Hon'ble Tribunal in the case of Solitaire Machines Tools Limited -vs.- CCE., Vadodara 2008 (222) E.L.T. 404 (Tri. - Ahmd.). Therefore, the duplicate demand is liable to be dropped. 2.6 It is further submitted that the Extended period cannot be invoked for the following reasons : • The fact on record that the first ER-1 was filed by the Appellant for the month of March 2014 (as recorded in para 3.4(ii) of the impugned SCN), and all the disputed credit availed by the Appellant was disclosed in that return • It is submitted that impugned SCN is entirely barred by limitation. The SCN dated 12 February 2018 was served on the A....
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.... inclusive part of the definition. This inclusive part specifically included the services availed for 'setting up the factory'. After 1.04.2011, it has three parts- a main part, an inclusive part and an exclusive part. The services used for setting up the factory are neither in the inclusive part of the definition nor the exclusive part of the definition. Therefore, such services were neither specifically included nor were specifically excluded. 17. It takes us to the main part of the definition which must be examined. If it is wide enough to cover the services in question, CENVAT credit will be available, otherwise it will not be available. The main part includes "services used by a manufacturer, whether directly or indirectly, in or in relation to the manufacturer of final products and clearance of final products up to the place of removal." The term manufacture is not defined in the Rules. 18. The definitions as per of CCR 2004 reads as follows RULE 2 Definitions. - (1) in these rules, unless the context otherwise xxxxxxxxxxx (2) The words and expressions used in these rules and not defined but defined in the Excise ....
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....there cannot be any manufacture. Service used in setting up the factory are, therefore, unambiguously covered as 'input services' under Rule 2 (I) (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. 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 allowed with consequential reliefs, if any. 9. The Kolkata Bench in the case of Bharat Coking Coal Ltd. v. CCE & ST, Ranchi 2021 (10) TMI 383-CESTAT Kolkata, following the ratio laid down in the case of Pepsico India (supra) held as follows: "6. The issue bef....