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2023 (12) TMI 842 - AT - Central ExciseRecovery of CENVAT Credit alongwith interest and penalty - input services - erection, installation and commissioning of research and development centre - garden maintenance service - canteen services - bus transport service - HELD THAT:- The biggest component of the disallowance in the impugned order is the service availed for ‘establishment of research and development centre’ at the premises of appellant and, primarily, based on circular of Central Board of Excise & Customs (CBEC) issued in 2008. The said circular relates to availment of services of ‘commercial and industrial construction service’ which, to the extent utilized for erection of immovable property, was ruled as ineligible - it is found that this narrow perspective of the activity undertaken by the appellant is not appropriate inasmuch as it was not restricted to construction of a building but outfitting as ‘research and development centre’ which was essential for manufacture. The issue which came to be considered by the Central Board of Excise & Customs (CBEC) was the excisability of movable goods, upon being fixed permanently, to acquire the character of non excisability which excluded application of Central Excise Act, 1944 while the present dispute does not relate to ‘output service’ but to the manufacturing undertaken by the appellant which stands on an entirely different footing. Insofar as ‘garden maintenance service’ is concerned, the reliance placed by the Learned Authorised Representative on the decision in STANADYNE AMALGAMATIONS PVT. LTD. VERSUS COMMISSIONER OF C. EX., CHENNAI [2011 (2) TMI 644 - CESTAT, CHENNAI] does not appear to reflect the correct law inasmuch as the decision that maintenance and repair of photocopier, air conditioner, water cooler etc., are essential without, which the factory cannot run; therefore, the service tax paid on the services is admissible as credit. Likewise, on the aspect of ‘canteen facility’, several decisions of the Tribunal enumerated have set out the terms for availment of credit of tax paid on such services - It would also appear that the appellant has reversed credit insofar as the ‘bus transport service’ is concerned which, thus, no longer continues as dispute. Thus, on the entitlement of tax paid on the services as CENVAT credit, the impugned order lacks merits - appeal allowed.
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