Contact us   Feedback   Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (10) TMI 1300 - CESTAT MUMBAI

2015 (10) TMI 1300 - CESTAT MUMBAI - 2015 (39) S.T.R. 1027 (Tri. - Mumbai) - Availment of credit Whether Garden Maintenance Services, Event Management Services, Outdoor Catering Services, Telephone Services & Brokerage Charges are input services? SCN issued denying the credit on grounds that said services do not qualify as input services No nexus found between input and output services by Revenue.

Held That:- Outdoor Catering Service is essential to run the business of appellant .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in favour of the Appellant. - ST/608, 627, 745-746/2012-Mum & ST/88139/2013-Mum - Final Order Nos. A/580-584/2015-WZB/SMB - Dated:- 18-3-2015 - Shri Anil Choudhary, Member (J) Shri Bharat Raichandani, Advocate, for the Appellant. Shri N.N. Prabhudesai, Supdt. (AR), for the Respondent. ORDER The present appeals are filed against the order-in appeals passed by the Commissioner of Central Excise (Appeals), Belapur. The details are as follow : Appeal Nos. OIA No. Period Amount (Rs.) ST/608 & .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t of credit of Service Tax paid on input services viz. Garden Maintenance services, Event Management Services, Outdoor catering Services (canteen) services, Telephone Services & Brokerage Charges. 2. The brief facts of case are the appellant, inter alia, is engaged in the business of providing Port services. They are, accordingly, registered with the service tax department. The appellant uses various input services for providing the taxable output services and in turn are availing and u .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ty. The said show cause notices were dropped in part by the adjudicating authority except for demand pertaining to credit availed on outdoor catering services for period post April, 2011, vide order-in-original dated 31-1-2013. Appellant being aggrieved, had filed appeals along with cross objection to Revenue s appeal before the Commissioner (Appeals) - against dropping of the demands. The Commissioner (Appeals) had upheld the order passed by the Additional Commissioner. Being aggrieved by the s .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

g submissions before this Tribunal. 4.1 Learned Counsel states that the object of the legislature for introducing Cenvat Credit Rules was to allow credit of Service Tax paid on taxable services that form part of assessable value of final product, which is very clear from the speech of Finance Minister in his budget speech, 2004-2005 pursuant to which draft Cenvat Credit Rules were circulated by Ministry of Finance inviting comments from the trade and industry. Therefore, a Press Note dated .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e but the value of which gets absorbed in the value of goods. As regards services received after the clearance of the goods from the factory, the credit would be extended on services received upto the stage of place of removal (as per Section 4 of Central Excise Act.) In addition to this, services like advertising, market research etc. which are not directly related to manufacture but are related to the sale of manufactured goods would also be permitted for credit. (iv) Full credit of Service ta .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ed in relation to setting up, modernization, renovation or repairs of a factory or office relating to such factory . The Cenvat Credit Rules expanded the said term to read as activities relating to business , which was expanded and illustrated further with the addition of services such as coaching and training, share registry, credit rating, etc. which pertain to various aspects of the activities relating to business. Hence, the manifest intention of the Legislature is to allow credit on all ser .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

covers within its ambit all services received by the service provider or manufacture, as long as they are related to the service business of the assessee. A service would qualify as input service even if not covered by the means portion, if it satisfies the includes portion of the definition. In other words, in order to qualify as an input service, a service has to fall either within the means part or includes part of the said definition. Term includes infact enhances the scope of the definition .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rds or phrases occurring in the body of the statute; and when it is so used, these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import but also those things which the interpretation clause declares that they shall include. [See (i) Stroud s Judicial Dictionary, 5th edn. Vol. 3, p. 1263 and (ii) C.I.T. v. Taj Mahal Hotel, (iii) State of Bombay v. Hospital Mazdoor Sabha . Further the term such as in a definition is purely illu .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

services or manufacture of the product. Therefore, activities in relation to business cover all the activities that are related to the functioning of a business. 4.4 Learned Counsel further submits that, various limits of definition of input service are independent/diverse/concession/exemption. If an assessee can satisfy any one of the limbs of the definition of input service which is effectively divided into four categories as below, then credit would be available : (a) Any service used b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

on Ltd. and Ors. v. Commissioner of Income tax - 1998 (5) SCC 48, the Supreme Court, inter alia, held as under : We may notice that the provision is introduced with a view to encouraging and promoting growth of co-operative sector in the economic life of the country and in pursuance of the declared policy of the Government. The correct way of reading the different heads of exemption enumerated in the section would be to treat each as a separate and distinct head of exemption. Whenever a question .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

eriod cannot be invoked. The allegation raised on appellant that they did not produce any evidence and they should have intimated department of the availment of credit on aforesaid services is not correct; as appellant is registered with department & filing periodical ST-3 returns which dully reflect the Cenvat credit availed by the appellant. Relying on Hon ble Supreme Court judgment in the case of Pahwa Chemicals Pvt. Ltd. - 2005 (189) E.L.T. 257 (S.C.), wherein Hon ble Supreme Court held .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

re) Regulation, 1990 as the employees are more than 250 workers, appellant is under statutory obligation to provide and maintain adequate canteen facilities under the said Regulations. Hence as the catering services are provided by the appellant as a part of its business need & obligation to the employees who are the essential hands of the business. Without the said workers/employees, the appellant would not be in position to provide the output service. Hence, it is evident that it has a dir .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tion of any employee. will not apply in the facts of present case, as the said clause would only apply in case when such services are used primarily for personal use or consumption of an employee. The learned Counsel has cited the Hon ble Supreme Court judgment in the case of Union of India v. Hansoli Devi - (2002) 7 SCC 273, wherein it has observed that the legislature never waste its words or say anything in vain and a construction which attributes redundancy to legislation will not be accepte .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ation to the manufacture of final products not a standalone item but it is to be read in entirely as used in or in relation to manufacture of final product whether directly or indirectly and whether contained in final product or not and further held that inputs falling in inclusive part must have nexus with manufacture of final product. Therefore while deciding what is an eligible input service for a specific output service, the claimed input service should also be required to meet the test spec .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the definition of input & input service and even the mean part of definition of input service do not appear to be pari materia. As the aforesaid decision of Hon ble Supreme Court was rendered in context of Input and did not consider the definition of input service under Rule 2(1), hence it does not apply to facts of instant case. 5.2 Further, in case cited by learned DR, in case of Manikgarh Cement [2010 (20) S.T.R. 456 (Bom.)], wherein it is held that the expression relating to busines .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

alled at the residence of employees would be available. 5.3 Further the learned AR, submits that as to the contention of the appellant that the amendment vide Notification No. 03/2011-C.E. (N.T.) expressly excluding outdoor catering services vide clause (C) of the definition of Input Services, which was effective from 1-4-2011 is not applicable to employees (plural) . The DR submits that Hon ble SC of India in Judgment in United Electrical industries Ltd [1999 (108) E.L.T. 609 (S.C.)], at p .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

2011 (24) S.T.R. 645 (Kar.)], wherein it is held that expenses incurred for welfare of employees cannot be separated from the business of manufacture of final product. 5.5 In relation to garden maintenance service, learned AR relies on GKN Sinter Metals Ltd. v. Commissioner of Central Excise, Aurangabad - 2009 (16) S.T.R. 615 (Tri.-Mumbai) stating that the garden maintenance service has no nexus with manufacture/clearance of excisable goods and is not eligible for taking credit. Appellant i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version