TMI Blog2015 (7) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... by the consumer. The cenvat credit availed by the assessee on rent-a-cab services is admissible and, therefore, no interference is called for with the order passed by the Tribunal. - Decided against the revenue. - C.M.A. No. 837 of 2010 - - - Dated:- 18-6-2015 - R. Sudhakar And K. B. K. Vasuki,JJ. For the Appellant : Mr. Xavier Felix For the Respondents : No Representation for R-1 JUDGMENT ( Delivered By R. Sudhakar, J.) This Civil Miscellaneous Appeal is filed by the Revenue as against the order of the Tribunal allowing the appeal filed by the assessee granting the benefit of Cenvat credit on the service tax paid on outdoor catering services provided for employees of the factory. This Court, vide order dated 29.4.2010, while admitting the appeal, framed the following substantial questions of law for consideration :- 1. In the facts and circumstances of the case, whether the first respondent can avail Cenvat credit of service tax paid on the services of tour operators/travels for transporting the staff working at their factory (pickup and drop) treating them as 'input service'? 2. Whether the second respondent was correct in law in applyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals in C.M.A.Nos.2 of 2010, etc., batch and vide judgment dated 13.02.2015 held in favour of the assessee by following the decision of the Bombay High Court in the case of CCE - Vs - Ultratech Cement Ltd. (2010 -TIOL - 745 - HC- MUM - ST), wherein all the contentions raised by the Revenue have been considered in extenso including the definition of 'input service' as defined in the case of Maruti Suzuki Ltd. - Vs - CCE (2009 (240) ELT 641 (SC)). The Bombay High Court, in Ultratech's case (supra) came to the conclusion that the decision of the Larger Bench of CESTAT in the case of CCE - Vs - GTC Industries Ltd. (2008 (12) STR 468) is correct law, however, with a rider that where the cost is borne by the worker, the manufacturer cannot take credit of that part of the service tax which is borne by the consumer. 7. For better clarity, the relevant portion of the decision of the Bombay High Court in the case of CCE - Vs - Ultratech Cement Ltd. (2010 -TIOL - 745 - HC- MUM - ST) is extracted hereinbelow :- 28. In the present case, the question is, whether outdoor catering services are covered under the inclusive part of the definition of input service . The service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the categories mentioned in the inclusive part is used as packing material . Packing material by itself would not suffice till it is proved that the item is used in the course of manufacture of final product. Mere fact that the item is a packing material whose value is included in the assessable value of final product will not entitle the manufacturer to take credit. Oils and lubricants mentioned in the definition are required for smooth running of machines, hence they are included as they are used in relation to manufacture of the final product. The intention of the Legislature is that inputs falling in the inclusive part must have nexus with the manufacture of the final product. 16. In our earlier discussion, we have referred to two considerations as irrelevant, namely, use of input in the manufacturing process, be it direct or indirect as also absence of the input in the final product on account of the use of the expression used in or in relation to the manufacture of final product . Similarly, we are of the view that consideration such as input being used as packing material, input used as fuel, input used for generation of electricity or steam, input used as an accessor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'input service' is wider than the definition of 'input' would make no difference in applying the ratio laid down in the case of Maruti Suzuki Ltd. (supra) while interpreting the scope of 'input service'. Accordingly, in the light of the judgment of the Apex Court in the case of Maruti Suzuki Ltd. (supra), we hold that the services having nexus or integral connection with the manufacture of final products as well as the business of manufacture of final product would qualify to be input service under rule 2(l) of 2004 Rules. 32. As rightly contended by Shri Shridharan, learned Counsel for the respondent - assessee, in the present case, the assessee carrying on the business of manufacturing cement by employing more than 250 workers is mandatorily required under the provisions of the Factories Act, 1948 to provide canteen facilities to the workers. Failure to do so entails penal consequences under the Factories Act, 1948. To comply with the above statutory provision, the assessee had engaged the services of a outdoor caterer. Thus, in the facts of the present case, use of the services of an outdoor caterer has nexus or integral connection with the business of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ricted to the services named therein, is also devoid of any merit, because, the substantive part of the definition of 'input service' as well as the inclusive part of the definition of 'input service' purport to cover not only services used prior to the manufacture of final products, subsequent to the manufacture of final products but also services relating to the business such as accounting, auditing ....... etc. Thus, the definition of input service seeks to cover every conceivable service used in the business of manufacturing the final products. Moreover, the categories of services enumerated after the expression 'such as' in the definition of 'input service' do not relate to any particular class or category of services, but refer to variety of services used in the business of manufacturing the final products. There is nothing in the definition of 'input service' to suggest that the Legislature intended to define that expression restrictively. Therefore, in the absence of any intention of the Legislature to restrict the definition of 'input service' to any particular class or category of services used in the business, it would be r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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