TMI Blog2009 (12) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... is appeal against the order of denial of CENVAT credit on garden maintenance service. 2. The issue before me is whether the garden maintenance service is an input service as per the definition in rule 2(l) of the CENVAT Credit Rules, 2004 or not. 3. To support his contention, the learned Advocate for the appellant relied on the judgment in the case of Millipore India Ltd. v. CCE [2009] 22 STT 536 (Bang.) wherein the Tribunal held that "modernization, renovation and repair etc. of office premises are included and even the landscaping the surroundings of factory to be considered as "input service" within the definition of rule 2(l) of CENVAT Credit Rules, 2004. Hence, the credit of garden maintenance service is eligible and the appellant has rightly availed the same". 4. On the other hand, the learned DR appearing for the revenue relied on the decision of this Tribunal in the case of Kirloskar Oil Engines Ltd. v. CCE [Final Order No. A/157/2009/SMB/C-IV, dated 6-4-2009] wherein it was held that :— "garden maintenance service has no nexus, even remotely, to manufacture or clearance of excisable goods. The above services was not used, directly or indirectly, in relation to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acturer is concerned :— (i) Any service used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products; (ii) Any service used by the manufacturer whether directly or indirectly, in or in relation to clearance of final products from, the place of removal; (iii) Services used in relation to setting up, modernization, renovation or repairs of a factory, or an office relating to such factory; (iv) Services used in relation to advertisement or sales promotion, market research, storage up to the place of removal, procurement of inputs; (v) Services used in relation to activities relating to business and outward transportation up to the place of removal;" And further stated that to claim Cenvat credit in all the limb of the above definition on satisfying any one of the limbs of the above categories Cenvat credit is available and they are all independent as considered by the Hon'ble Bombay High Court. But the Ld. DR emphasized to the illustrations put by the Hon'ble High Court which is reproduced below :— " . . . To illustrate, input services used in relation to setting up, modernization, renovation or repairs of a factory wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which may otherwise have not come within the ambit of the definition clause are included and by the word 'means' these are made exhaustive. (3) 'Such as' - The words 'such as' are illustrative and not exhaustive. In the context of business, these are services, related to business. They may not be exhaustive, but are illustrative. (4) 'Business' - The expression is an integrated/continuous activity and is not confined/restricted to mere manufacture of product. Therefore, activities in relation to the functioning of a business. The terms 'business' therefore, cannot be given a restricted definition to say that business of manufacturer is to manufacture final products only. (5) 'Activity relating to business' - The words 'relating to' further widens the scope of expression 'activities relating to business'. The expression 'in relation to' (so also 'pertaining to') is very broad expression which presupposes another subject-matter. Similarly, the use of the word 'activities' in the phrase 'activities relating to business' further signifies the wide import of the phrase 'activities relating to business'. The Rule making authority has not employed any qualifying words before the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accessories of the final products cleared along with the final product, goods used as paint, or as packing material, or as fuel, or for generation of electricity or steam used in or in relation to manufacture of final products or for any other purpose, within the factory of production;" Similarly, I am of the view that consideration such as input being used as— "Packing material, input used as a fuel, input used for generation of electricity or steam, input used as an accessory and input used as paint are per se" also not relevant. All these considerations become relevant only when they are read with the expression "used in or in relation to the manufacture of "final product" in the substantive/specific part of the definition. In each case it has to be established that inputs mentioned in the inclusive part is "used in or in relation to the manufacture of final product." The Apex Court in this has observed that— "It is the functional utility of the said item which would constitute the relevant consideration. Unless and until the said input is used in or in relation to the manufacture of final product within the factory of production, the said item would not become an eligib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 up to the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control etc. . . ." 17. The Legislature has not used the word in the include part that it is to be used in or in relation of the final product. 18. From the above, it is clear that the intention of the Legislature was that these activities should be relating to the business. But in then case of Maruti Suzuki Ltd. (supra), the Hon'ble Apex Court has considered the word 'input' in rule 2(k) of Cenvat Credit Rules, 2004 and there is no finding with regard to 'input service'. Therefore, the reference of Ld. DR in the case of Maruti Suzuki Ltd. (supra) is no help to him. 19. The Ld. DR further relied on Kirloskar Oil Engines Ltd.'s case (supra) and Vikram Ispat wherein the Tribunal has held that "the above service was not used directly or indirectly in relation to manufacture or clearance of final product". I concur with the lower authorities on this po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (13) I disagree with the contention to the Ld. SDR that the definition of the inputs is to be read as a whole. Further, in the appellant's own case (supra) this Tribunal has held that the activities specified after the phrase 'such as' are only illustrations and examples and not exhaustive. Therefore, an activity other than those illustrated but related to business will also get covered under the definition of input service. The appellant is a manufacturing unit and according to the above definition, the use of the phrase 'such as' will mean inclusion of an activity which is of a kind as of the illustrations. The main issue to be decided in this case is whether the services provided by the Airport Authority of India can form the part of business activities. It is clear that the aircraft, which is stationed at airport is used by the appellant for the business activities and this stand is taken by the appellant before the lower authorities, which was not declined by the lower authorities. Therefore, I hold that the services rendered by the Airport Authority of India and the service tax charged by them would get cover under the definition of input services as per rule 2(l) of the Cenv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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