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2021 (8) TMI 872 - CESTAT NEW DELHICENVAT Credit - input services - services of decline excavation, blasting, sealing and mucking, utilized for mine development at Kayad captive mines - interpretation of statute - scope of the ‘means’ clause of rule 2(l) of the Credit Rules - situation pre 01.04.2011 and post 01.04.2011 - directions contained in the orders passed by the Tribunal were complied with or not - scope of SCN - HELD THAT:- There is no manner of doubt that the order passed by the Commissioner adjudicating the first show cause notice is beyond the scope of the remand order. In regard to the subsequent show cause notices dated 28.10.2015 and 31.03.2016 for the period from October 2014 to September 2015, it is seen that the show cause notices were issued on a ground different from that contained in the first show cause notice. The show cause notices mention that the services were in relation to ‘setting up’, of mines, which service stood omitted w.e.f. 01.04.2011 from the inclusive clause of the definition of ‘input service’ under rule 2(l) of the Credit Rules. They also mention that the services were in relation to ‘construction and ‘execution’ of a works contract of a building or a civil structure’, which service was excluded under rule 2(l)(A) of the Credit Rules. The Tribunal in the order dated 17.11.2017, after making reference to the order dated 14.08.2017 earlier passed by the Tribunal in Excise Appeal No. 51849 of 2015, issued the same direction to the Adjudicating Authority to take a fresh decision after examining the nexus between the services and the final product of the appellant. The Department did not file any appeal against this order dated 17.11.2017 of the Tribunal and so the order passed by the Tribunal attained finality. The Commissioner was, therefore, required to examine only this limited issue on remand, but as the order would indicate, the Commissioner denied CENVAT credit observing that the work was basically of development of a civil structure of mining area by way of construction of decline/ramp and the same would merit classification as ‘construction services’, which services had been excluded under rule 2(l)(A) of the Credit Rules w.e.f. 01.04.2011. The Commissioner, therefore, in regard to the subsequent two show cause notices also went beyond the remand order. There is no hesitation in holding that the order dated 25.05.2018 passed by the Commissioner has travelled beyond the scope of the remand orders passed by the Tribunal on 14.08.2017 and 17.11.2017 and, therefore, cannot be sustained - when the services received by the appellant are covered within the ‘means’ clause of the definition of ‘input service’, the appellant was justified in availing CENVAT credit on various services utilized for mine development at Khayad captive mines. The Commissioner was, therefore, not justified in examining the ‘includes’ part or ‘excludes’ part of the definition of ‘input service’ when it had been contended on behalf of the appellant that the services utilized for mine development would be ‘input service’ under the ‘means’ clause of the definition of ‘input service’ - Appeal allowed.
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