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2023 (7) TMI 631 - AT - Central ExciseCENVAT Credit - works contract service or not - construction services provided by various contractors towards the construction of the civil structure or the part thereof for the appellants premises for making of structure of support of capital goods - SCN barred by time limitation or not - HELD THAT:- The “modernization, renovation or repairs of a factory” are appearing in the inclusion part of the definition of input service. In the exclusion part such work contracts are covered where service element can be vivisected from the goods element and the properly in those goods gets transferred in favour of the recipient. There are no evidence on record produced by the Department to prove that the construction services for the building/civil structure was for a building other than the factory premises of the appellant. Also there is no evidence to prove that properly in goods got transferred to appellant - there are no hesitation to accept the submission of the appellant that they were receiving the construction services for the repair, maintenance and modernization of their premises. The specific disallowance of availment of Cenvat credit with respect to such construction/erection, installation and commission, services which are with respect to the new construction if undertaken by the assessee, however, there is no such specific disallowance in Rule 2 (i) of CCR, 2004 with respect to repair and maintenance work of the premises of the manufacturer. Time limitation - only allegation is that had the Department not conducted audit, the appellant would have succeeded to evade - HELD THAT:- The said allegation has no basis to stand otherwise also, it is observed that the show cause notice was based on appellant’s own documents i.e. the invoices as were maintained by them in accordance of business the returns were admittedly being filed in time mentioning required details about availment of credit. There is nothing on record which may be called as the proof for alleged suppression or mis-conduct. Resultantly the extended period of limitation has wrongly been invoked by the Department while issuing the impugned show cause notice. The order under challenge is also liable to be set aside for an apparent ambiguity in the show cause notice itself i.e. the authority issuing show cause notice itself was not sure as to whether the services are merely the construction services in their own building. Appellant has produced on record enough document in the form of several invoices that the services in the construction/erection, commissioning and installation services, but those were meant purely for maintenance/repair/ modernization of appellant’s own premises - Appeal allowed.
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