TaxTMI 
TaxTMI 
2026 (1) TMI 1457
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....ssioner (A). The Commissioner (Appeals) denied the benefit on certain capital goods on the ground that they are embedded to earth and become immovable. The credit on input services was also denied as they were used for setting up the plant and since w.e.f. 01.04.2011 the word 'setting up' had been deleted the appellant was therefore ineligible for cenvat credit. Aggrieved by this order, the appellant has filed this appeal. 3. The Learned Chartered Accountant submits that the appellant is manufacturer of cement and trades in cement and fly ash. With regard to cenvat credit on capital goods, it is submitted that various suppliers supplied the capital goods on turnkey basis where the alleged plant was setup. He submits that denial of cenvat credit on the capital goods on the ground that capital goods were delivered directly to the registered factory premises of the appellant and the plant had become immovable is no longer good law in as much as the Hon'ble Supreme Court in the case of Bharti Airtel Ltd. Vs. CCE 2024 S.C.C online 3374 had settled the issue. 3.1 With regard to denial of cenvat credit on input service on the ground that the word 'setting up' has been omitted w.e.f.....
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.... (iii) Providing an output service of courier agency; (C) motor vehicle designed to carry passengers including their chassis, registered in the name of the provider of service, when used for providing output service of- (i) Transportation of passengers; or (ii) Renting of such motor vehicle; or (iv) Imparting motor driving skills; [substituted w.e.f. 01-07-2012 vide Notification No.28/2012 CE(NT) dated 20.06.2012) (D) Components; spares and accessories of motor vehicles, which are capital goods for the assessee; [substituted wef 01.04.2012 vide Notification No.18/2012 CE(NT) dated 17.03.2012.] (clause (viii) inserted vide notification No.18/2012 CE (NT) dated 17.03.2012 WEF 01.04.2012] 6. The original authority and the Commissioner (Appeals) in the impugned orders denied the cenvat credit on capital goods on the ground that the capital goods were used in the plant and machinery which were embedded to earth and became immovable relying on the Board 's Circular, which is reproduced below: Plant and machinery assembled at site - Excisability of - Clarifications Order No. 58/1/2002-CX, dated ....
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....ct being assimilated in a structure which would render them as a part of immovable property), excise duty would be chargeable on such goods immediately upon their change of identity and prior to their assimilation in the structure or other immovable property. (iii) Where change of identity takes place in the course of construction or erection of a structure which is an immovable property, then there would be no manufacture of "goods" involved and no levy of excise duty. 7. We find that the reliance placed on by the authorities on the above Circular is misplaced since the Circular is about classification of goods that are embedded to earth and not on denial of cenvat credit. The definition of 'Capital Goods' categorically specifies that used in the factory of the manufacturer of the final products.......... There is no dispute that the plant and machinery is used in the manufacture of dutiable goods, therefore, the question of denying the cenvat credit on the ground that the plant and machinery are embedded to earth cannot be justified. 8. The Hon'ble Supreme Court in the case of Bharti Airtel Ltd. Versus Commissioner of Central Excise, Pune: (2024) 24 Centax 266 (S.C....
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.... denial of cenvat credit does not arise, hence, we do not find any justifiable reasons to deny the cenvat credit on 'Capital Goods'; accordingly, the demand confirmed against denial of cenvat credit on 'Capital Goods' stands set aside. 9. The second issue is with regard to denial of cenvat credit on 'input services' for setting up of factory on the ground that the Cenvat Credit Rules, 2004 were amended w.e.f. 01.04.2011 were in the word 'setting up' and 'activities relating to business' were omitted. In a similar set of facts, the Tribunal in the case of Mangalam Cement Ltd. Versus Commissioner, Central Goods, Excise & Service Tax, Udaipur (2024) 24 Centax 38 (Tri.-Del) dated 10-4-2023 observed as follows: "11. .............. It needs to be noted that in Kellogs India Pvt. Ltd v. Commissioner of Central Tax, Tirupathi, the Tribunal observed:- ......... 15. The learned Counsel for the appellant in the written submissions have submitted a chart giving details of the services on which they had availed the cenvat credit and justified the same relying on the decisions mentioned therein. We have gone through these decisions with reference to the respective s....
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....R. 179 (Tri. - Chennai) • Larsen and Toubro Ltd. v. CCE, Mumbai-II, 2018 (15) G.S.T.L. 66 (Tri.-Mumbai) Hiring of JCB and Heavy Earth Moving machinery service for Erection, Commissioning and Installation of railway track, plant and machinery) (Credit -Rs. 3,97,003) Maintenance or repair services for electrification and power supply work at MGU essentially used in relation to manufacture of final product. (Credit- Rs. 24,151) Orient Cement Ltd. (supra) Chartered Accountant Services for accounting, regulation compliances, Project audit necessary for completion of expansion/ modernization of MGU (Credit-Rs. 10,382) Manchanda and Manchanda v. Commissioner of C. Ex., Delhi-IV, 2019 (21) G.S.T.L. 529 (Tri. - Del.) Banking & Other financial Services for foreign exchange conversion charges paid to DBS Bank for financing of MGU (Credit- Rs. 1,885) Hindalco Industries Ltd. (supra)Sundaram Clayton Ltd. v. CCE, 2016 (42) S.T.R. 741 (Tri.-Chennai) GTA services for inward transportation of input and capital goods like cables, electric motors, grinding rollers, packers etc. in the MGU. (Credit -Rs.1,41,465) Specified in the inclusive part of Rule ....