TMI Blog2011 (2) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... not available - objection of the Department is not correct as the factory premises and office premises of the factory had been constructed by availing the services of commercial or residential construction service providers, for manufacture of excisable goods - requirement of pre-deposit of Cenvat credit demand, interest and penalty would cause undue hardship – Stay granted - E/801 OF 2010 &E/STAY APPLICATION NO.847 OF 2010 - - - Dated:- 25-2-2011 - R.M.S. KHANDEPARKAR, PRESIDENT AND RAKESH KUMAR, MEMBER (T) STAY ORDER Per: Rakesh Kumar: This is an application for waiver from the requirement of pre-deposit of Cenvat credit demand of Rs.1,15,81,957 alongwith interest confirmed against the appellant and penalty of Rs.1,15, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit Rules, 2004 readwith proviso to Section 11A (1) of Central Excise Act, 1944 alongwith interest on it at the applicable rate under Section 11AB of Central Excise Act, 1944 and also for imposition of penalty on the appellant under Rule 15 of the Cenvat Credit Rules, 2004 readwith Section 11AC of the Central Excise Act, 1944. The extended period under proviso to Section 11A (1) of the Central Excise Act, 1944 was invoked by alleging that the appellant had suppressed the information regarding availing of this inadmissible service tax credit. The show-cause notice was adjudicated by the Commissioner by the above-mentioned order-in-original dated 31/12/2009 by which the Cenvat credit demand made in the show-cause notice was confirmed against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax paid on the commercial construction service availed by the appellant for construction of buildings in the factory premises, as the buildings constructed were meant for housing the plant and machinery, that the Circular No. 98/1/08 dated 4th January 2008 of the Board is not applicable to this case, that the appellant have a strong prima facie and that in view of this, the requirement of pre-deposit of Cenvat credit demand, interest and penalty may be waived for hearing of the appeal. 2.2. Shri Sunil Kumar, the learned Departmental Representative, opposed the appellant's plea for waiver from the requirement of pre-deposit and stay on recovery thereof, reiterating the Commissioner's findings in the impugned order and emphasized that sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been availed for construction of certain buildings in the factory premises which house the manufacturing facilities and office premises of the factory. There is also no dispute about the fact that in the factory of the appellant manufactures excisable goods namely motorcycle and parts thereof which are cleared on payment of duty. The definition of input service as given in Rule 2 (1) of the Cenvat Credit Rules, 2004 is as under :- "input service" means any service, - (i) used by a provider of taxable service for providing an output service, or (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and [clearance of final products upto the place of removal,] and inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in the factory of the appellant, the goods manufactured are dutiable goods, cleared on payment of Central Excise duty, the bar of sub-Rule (5) of Rule 6 is also not applicable. 5. The only objection of the Department is that the services, in question, covered by Section 65 (105)(zzq) have been used for bringing into existence, factory buildings which is an immovable property on which no excise duty is chargeable and, therefore, Cenvat credit would not be available. We are of the prima facie view that this objection of the Department is not correct as the factory premises and office premises of the factory had been constructed by availing the services of commercial or residential construction service providers, for manufacture of excisa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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