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2024 (5) TMI 195 - CESTAT KOLKATACENVAT Credit - services utilized for setting up plant for manufacturing of finished products which started with effect from September 2015 - amendment in Rule 2 (l) of CCR, 2004 with effect from 01/04/2011 and the word “setting up” was removed because of which Cenvat Credit cannot be taken for the services used towards setting up of the factories - suppression of facts or not - extended period of limitation - HELD THAT:- There is no dispute that the Appellant is manufacturing goods which were exigible to Excise Duty payment when they are cleared from their factory. They have taken the Cenvat Credit on various input services which have been used before they commenced the manufacturing activities. The issue is no more res-integra. This Bench in the case of Texmaco UGL Rail (P) Ltd, [2019 (7) TMI 1651 - CESTAT KOLKATA] has held 'the amendments have been made in the definition of input services effective from 1 stApril, 2011 to specifically exclude input services in forms of works contract or construction services used in relation to building or civil structure or part thereof. It also excludes similar services used for laying of foundation or making of structure for support of capital goods. Thus, the intention of legislature was to restrict input tax credits on above services, which are used during factory set up and hence the term “setting up” was removed from the earlier definition having specific exclusion clause in the new definition.' There are substantial force in the Appellant’s submission that when they were taking the Cenvat Credit and reflecting the same in the ER-1 Returns during the period 2012 to 2015, the Department was very much aware that they were taking the Cenvat Credit for various input services. The Department was aware that till September 2015, they were not manufacturing the goods, nor clearing the same. Therefore, the Appellant cannot be fastened with the liability of suppression. The confirmed demand for the extended period is also hit by time bar. Therefore, the Appeal stands allowed even on account of limitation.
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