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2022 (1) TMI 59 - AT - Central ExciseCENVAT Credit - input service - construction services used by the appellant for setting up of Effluent Treatment Plant - HELD THAT:- The appellant has already existing factory and in the said factory, Effluent Treatment Plant was installed for which they have availed construction service from the contractor. Any activity of construction in the running existing factory shall be treated as modernization, renovation or repair and maintenance of existing factory - From a plain reading of Rule 2(l), it is clear that even though setting up of factory was removed from the exclusion clause however, the service of modernization, renovation or repair and maintenance is still provided in the inclusion clause. Therefore, any activity which related to modernization, renovation or repair and maintenance of factory, the same is eligible for Cenvat credit. There is no dispute on the fact that Effluent Treatment Plant was set up in the existing running factory. Therefore, it is nothing but modernization of the factory. As regards the argument made by learned Authorised Representative that from 01.04.2011, construction services and works contract services were excluded from the definition of input service, it is found that though construction service was excluded but since modernization, renovation and repair and maintenance is still continue to be existed in the inclusion clause of definition, credit shall be allowed. From the judgment of this Tribunal in M/S ION EXCHANGE I LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, SUARAT-II [2017 (12) TMI 151 - CESTAT AHMEDABAD] it can be seen that the amended definition of ‘Input Service’ from 01.04.2011 was considered and it was viewed that though the construction service/ works contract service were excluded but it was interpreted that the said service related to only new construction or setting up of a new factory. But since modernization, renovation or repair and maintenance, even after exclusion category, continue to remain in inclusion clause of definition, credit cannot be denied - the adjudication order deciding the matter on the basis of exclusion category is beyond the scope of show cause notice. The appellant is entitled for Cenvat credit - Appeal allowed - decided in favor of appellant.
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