TMI Blog2013 (1) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... edit would be correct only to the extent the items had been used purely in erection work, i.e. foundation for erection of machinery and making supporting structures for the machinery, or other structures fixed to earth, but to the extent the steel items have been used in fabrication of identifiable items of machinery, covered by the definition of capital goods as given in Rule 2(a) of Cenvat Credit Rules, the credit would be admissible. CENVAT Credit of service tax of various input services used in the construction and setting up of the factory - Circular No. 345/6/07-TRU., dated 4-1-2008 – Held that:- Prima facie view that work contract service and consulting engineers service are the services relating to setting up of a factory and, hence, would be covered by the definition of input service. Similarly, inward transportation of input or capital goods was also specifically covered by the definition of input service and, hence, the GTA service used for inward transportation of the goods would also be eligible for Cenvat credit. Similarly, the service of security, telephone, rent-a-cab operator service, used in connection with setting up of a factory would also be covered by the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed. 2. Heard both the sides in respect of stay application. 3. Shri P.K. Sahu, Advocate, the learned Counsel for the appellant, pleaded that so far as Cenvat credit of Rs. 12,54,71,323/- is concerned, this credit is in respect of various items of capital goods which had been received in the factory and had been installed therein, that just because these items of capital goods had been received prior to the commencement of production, the Cenvat credit cannot be denied, that in the adjudication order, this amount of credit has also been denied on the ground that these capital goods after being installed become immovable property, which is non-excisable, that this ground for denial is totally incorrect as for admissibility of capital goods Cenvat credit, what is relevant is as to whether the items brought into the factory for use therein are covered by the definition of capital goods as given in Rule 2(a) of Cenvat Credit Rules, that it is not the department s case that the items in respect of which Cenvat credit amounting to Rs. 12,54,71,323/-, has been availed are not covered by the definition of capital goods as given in Rule 2(a) of Cenvat Credit Rules, that in view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords. 7. Cenvat credit of Rs. 12,54,71,323/- as discussed in paras 6 and 7 of the show cause notice, is in respect of various items of capital goods falling under Chapters 82, 84, 85 and 90 and refractory and retractory material of Chapters 68 and 69 and conveyor belt falling under Chapter 40, received during the course of erection and installation work of the cement plant. Beside this, this amount also includes the Cenvat credit in respect of some items of Chapter heading 72 and 73 in respect of which the appellant could not produce any evidence as to whether they are the components, parts or accessories of the capital goods falling under Chapters 82, 84, 85 and 90 and Pollution Control Equipment. This Cenvat credit has been denied on the ground that the goods had been received prior to commencement of the production by the factory. The Cenvat credit in respect of Chapter 73 items has been denied on an additional ground also that there is no evidence that these items are components or parts of the goods falling under Chapters 82, 84, 85, 90 and Pollution Control Equipment. We are of prima facie view that so far as the items covered by the definition of capital goods, as given in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r premises. We are, therefore, of prima facie view that work contract service and consulting engineers service are the services relating to setting up of a factory and, hence, would be covered by the definition of input service. Similarly, inward transportation of input or capital goods was also specifically covered by the definition of input service and, hence, the GTA service used for inward transportation of the goods would also be eligible for Cenvat credit. Similarly, the service of security, telephone, rent-a-cab operator service, used in connection with setting up of a factory would also be covered by the expression activities relating to business in the definition of input service and would be eligible for Cenvat credit. In view of this, we are of prima facie view that denial of Cenvat credit amounting to Rs. 5,86,62,803/- is not correct. 9. As regards, the Cenvat credit demand of Rs. 2,51,34,068/-, in the show cause notice, this Cenvat credit was sought to be denied on the ground that the same in respect of inputs used for fabrication of various items of plant and machinery by the contractor and, hence, the appellant who is not the manufacturer of these items of capita ..... X X X X Extracts X X X X X X X X Extracts X X X X
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