TMI Blog2023 (11) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. A similar issue was considered in the case of INDIAN COPPER CORPORATION LTD. VERSUS COMMISSIONER OF COMMERCIAL TAXES, BIHAR AND OTHERS [ 1964 (10) TMI 41 - SUPREME COURT] , which is also a decision passed analysing as to whether the impugned goods therein would get the benefit of Section 8(1) of the Central Sales Tax Act. These decisions do not have any connection with the facts or law considered in the present case - In the present case, there is no dispute that the appellant is a manufacturer of goods and so also, there is no dispute that the process undertaken by the appellant is manufacture. For these reasons, the decision relied by the Ld. Authorized Representative is of no assistance to the Department. Emergency Medical Services - HELD THAT:- The appellant has availed credit on Emergency Medical Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... war) vide their letter dated 06.05.2014. 1.2 From the CENVAT Credit details furnished to Audit, it was noticed that the appellant had availed CENVAT Credit of Service Tax paid on various input services during the period from 01.04.2011 till the date of commencement of commercial production. Some of the services on which CENVAT Credit of Service Tax was availed by the appellant are as mentioned below: - Consulting Engineer Service Erection, Commissioning and Installation Service Security Agency Service Manpower Recruitment or Supply Agency Service Testing and Certification Service Courier Service Telecommunication Service Supply of Tangible Goods Service Goods Transport Agency Service Commercial Training Service Construction Service Banking and Other Financial Services Short Term Accommodation Service 1.3 The appellant had availed CENVAT Credit of Service Tax paid on all the services that were received prior to the commencement of commercial production. According to the Department, as the commercial production can be commenced only after setting up of a factory is complete, all the services received by the appellant prior to the comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken an erroneous view that the services of Erection, Commissioning and Installation and other related services availed by the appellant would fall under the broad category of setting up of a factory and is ineligible for credit. 7.3 The List of various services availed by the appellant and which have been denied by the Department, was adverted to by the Ld. Counsel for the appellant to argue that such services were used directly or indirectly in or in relation to the manufacture and therefore are eligible for credit. 7.4 The Ld. Counsel also adverted to clause (ii) of the definition of input service to argue that a manufacturer is eligible to avail credit on services used directly or indirectly, in or in relation to the activity of manufacture; since the various services have been used for the commencement of production of the factory, which are directly or indirectly related to the manufacture of the final product, the credit is eligible. 7.5 It is further submitted by the Ld. Counsel that the appellant has availed services in the nature of: - AMC charges Bank Charges Communication Services Consultancy Charges DG Rent for Guest House Manpower Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Representative adverted to the definition of input service post 01.04.2011 and submitted that the words services used in relation to setting up of a factory have been omitted with effect from 01.04.2011; all the impugned services have been availed by the appellant prior to commencement of commercial production and only after commencement of production can it be said that manufacture has happened. 8.2 To support his contention that there is no manufacture prior to commencement of production, the Ld. Authorized Representative relied upon the following decisions: - i. Collector of C.Ex. v. Ballarpur Industries Ltd. [1989 (43) E.L.T. 804 (S.C.)] ii. J.K. Cotton Spinning v. Sales tax Officer, Kanpur [1965 AIR 1310 (S.C.)] iii. Indian Copper Corporation v. Commissioner of Commercial Taxes [AIR 1965 SC 891] iv. Collector of Central Excise v. Eastend Paper Industries Ltd. [1990 AIR 1893 (S.C.)] v. Union of India v. Delhi Cloth General Mills [1963 AIR 791 (S.C.)] vi. Deputy Commissioner of Sales Tax v. Thomas Stephen Co. Ltd. [1988 AIR 997 (S.C.)] 8.3 It is emphasized by the Ld. Authorized Representative that the process of manufacture starts onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in relation to the manufacture of final products and clearance of final products upto the place of removal, and includes services used in relation to modernisation, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the definition, it would mean no Cenvat credit was available. On a specific query from the Bench, he submits that in the case of Kellogs this Bench held that Cenvat credit was available and the Revenue has appealed against the order which appeal is pending before the High Court of Andhra Pradesh for admission. 13. We have considered the arguments on both sides and perused the records. 14. The appellants had entered into an agreements to lease the land and to get various common facilities in the private industrial township called Sri City to set up their factories. It cannot be argued that manufacturing can take place without a factory nor can it be argued that a factory can be set up without the services in question. It is also not in dispute that M/s. Sri City, the service provider, paid service tax on the services. 15. The department wants to deny them the benefit of the Cenvat credit on the ground that services related to setting up of a factory which were specifically included prior to 1-4-2011 were no longer specifically included post 1-4-2011. 16. We find that the definition of input service prior to 1-4-2011 had two parts - a main part of the defini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or manufacture on his own account. 20. Thus, the term manufacture itself is very wide and includes anything incidental or ancillary to manufacture. 21. For a service to qualify as input service under Cenvat Credit Rules, 2004 post 2011, the service in question need not be covered even by the very wide definition of manufacture under Section 2(f) of the Central Excise Act. Any service which is used not only in manufacture but also in relation to manufacture will also qualify as input service. The scope of input service is further enlarged with the expression whether directly or indirectly used in the definition of input service. Thus, there are : (a) Actual manufacture; (b) Processes incidental or ancillary to manufacture which are also manufacture; (c) Activities directly in relation to manufacture (i.e., in relation to a and b above); (d) Activities indirectly in relation to manufacture (i.e., in relation to a and b above); 22. All four of the above qualify as input service as per Rule 2(l)(ii) as applicable post 1-4-2011. Although setting up the factory is not manufacture in itself, it is an activity directly in relation to manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment. 10. Referring to these decisions, the submission of the learned Counsel for the appellant is that omission of the words 'setting up' from the inclusive clause of the definition of 'input service' does not render the credit on services used in relation to plant and machinery ineligible. He further relied on the principle enunciated in the various decisions, to say that the Appellant is eligible for cenvat credit on the input services under the means clause used in or in relation to the manufacture of final product of the definition of input service even after the amendment in the definition of the input service as the 'means clause' continues to be the same as before the amendment. . 13. The findings of the authorities below that services related to Erection, Commissioning Installation services, Works Contract service hiring of JCB Earth Moving machinery service have been received in relation to construction activity which under the exclusion clause (A) under Rule 2(l) are not admissible services to avail cenvat credit cannot be sustained as these services have been utilized for installation of plant machinery fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said judgement. Similarly, the other case law Shriram General Insurance Co. Ltd., vs. Commissioner of C. Ex., Jaipur-I 2021 (44) GSTL 185 (Tri. Del.), Herrenknecht India Pvt. Ltd., vs. Commissioner of GST Central Tax, Chennai -2019 (28) GSTL 243 (Tri. Chennai), Empire Industries Ltd., vs. Commissioner of C.Ex. Mumbai-III - 2018 (15) GSTL 274 (Tri. Mumbai), India Cements Ltd., vs. Commissioner of C. Ex. S.T. Guntur -2016 (45) STR 557 (Tri. Hyd.) and also in Toyota Kirloskar Motor Pvt. Ltd., vs. Commissioner of Central Tax -2021 (55) GSTL 129 (SC.), referred to by the learned Authorised Representative are clearly distinguishable in view of the issue involved therein. We do not agree with the plea of per incuriam raised by him relying on M/s Case New Holland Construction Equipment (I) Pvt. Ltd., vs. CC Ex., Ujjain 02021 (8) TMI 963, to say that in the case of Hindustan Zinc the law laid down has not been considered as the said decision is based on the earlier decisions on the subject. The case law cited by the authorised representative is not applicable in the present controversy and is clearly distinguishable. We chose to take the same view as has been repeatedly and succes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and also whether the wrapping paper used would be an integral part of the manufacture. 14.5 Further, in the decision in the case of Union of India v. M/s. Delhi Cloth General Mills (supra), the meaning of manufacture was analysed. The said decision categorically held that manufacture intends change, but every change is not manufacture. 14.6 The decision in the case of M/s. Thomas Stephen Co. Ltd. (supra) is also a decision rendered under the Sales Tax Law of the State of Kerala and hence, not applicable. 14.7 In the case before us, there is no dispute that the appellant is a manufacturer of goods and so also, there is no dispute that the process undertaken by the appellant is manufacture. For these reasons, we find that the decisions relied by the Ld. Authorized Representative is of no assistance to the Department. 15.1 From the list of services produced by the Ld. Counsel for the appellant, we find that the appellant has availed credit on Emergency Medical Services from M/s. Sri Vinayak Hospital to the tune of Rs.31,518/-. It is explained by the Ld. Counsel that being a factory, they have to provide on-site emergency medical services and the unit was set up a ..... 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