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2016 (6) TMI 155 - CESTAT BANGALORE

2016 (6) TMI 155 - CESTAT BANGALORE - 2016 (45) S.T.R. 233 (Tri. - Bang.) - Cenvat Credit - Nexus between input services and manufacturing activity - deemed export - Whether the input credit availed on various services by the respondent would fall under the definition of input services/input as per the definition existing prior to 01.04.2011 and whether there is a nexus between input services and the final product exported - Held that:- by examining the definition of input service as per Rule 2( .....

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he Commissioner (Appeals) are sustainable and there is no infirmity in it and the same is upheld. - Eligibility for refund of unutilized Cenvat credit - Rule 5 of the Cenvat Credit Rules 2004 - clearances made to other 100% EOU on inter unit transfer - Held that:- this Tribunal has allowed the refund claim filed by the respondent in its own case reported in [2015 (6) TMI 377 - CESTAT BENGLALORE]. Further the Honíble Supreme Court in the case of Virlon Textile Mills Ltd. Vs. CCE, Mumbai [2007 .....

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preme Court, I hold that clearances to an EOU is to be treated as export and refund of unutilized credit is allowed to the respondent-assessee. - As far as application seeking additional grounds by the Revenue is concerned I allow the same on the ground that it is only an additional ground which is sought to be added in the existing grounds of appeal. - Decided against the revenue - E/20458/2014, E/20459/2014, E/20460/2014, E/20461/2014, E/20462/2014, E/20463/2014, E/20464/2014, E/20465/2014 .....

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has dismissed the appeals of the department and allowed the appeals of the assessees. Against the said impugned order the department has filed the following appeals, the details of which are shown in the table below along with the cross objections filed by the assessee and also the application for additional evidence filed by the Revenue in all the eight appeals. Sl. No. Appeal No. & Additional Evidence No. Order- in -Appeal No. Period Refund amount involved (Rs.) 1 E/20458/14 & E/AE/20 .....

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18/- 7 E/20464/14& E/AE/22553/14 621-638/13 dt. 06.11.13 July 10 to Sept. 10 20,05,045/- 8 E/20465/14 & E/AE/22551/14 621-638/13 dt. 06.11.13 Oct. 10 to Dec. 10 21,83,233/- Since the impugned order is one and the issues in all the appeals are identical with different periods. Therefore I proceed to decide all the eight appeals by this common order. 2. Briefly the facts of the case are that respondent M/s. Nash Industries are engaged in the manufacture of Sheet Metal Pressed Components fa .....

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esting and Analysis Service, Telephone service, Transport of Goods by Air, Online Information and Database access service, Manpower Recruitment and Supply Service, Rent a Cab service etc. The respondent has also sought refund of unutilized cenvat credit on account of clearance to other 100% EOU on inter unit transfer on the ground that the same is covered under Rule 5 of the Cenvat Credit Rules 2004. The adjudicating authority has partially allowed the refund with regard to certain services but .....

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ppeals). The department filed the appeals mainly on the ground that the credit of service tax is not related to manufacture of final products, on the kind of business activities and therefore does not appear to conform to the definition of input service as given under Rule 2(l) of Cenvat Credit Rules 2004 and further the use of the services in or in relation to manufacture alone determines its qualification to be an input service under Cenvat Credit Rules 2004. On the other hand the assessee fil .....

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eafter the appeals of the department were rejected and the appeal of the assessee was allowed. Aggrieved by the same the present appeals have been filed by the Revenue mainly on the ground that there is no nexus between the input services and the manufacture of final product which is exported. Further the Revenue after filing of the appeal has moved an application for additional grounds in respect of the appeals filed earlier seeking to add the grounds that the Commissioner (Appeals) vide the im .....

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the department has distinguished the judgments relied upon by the Commissioner for granting relief to the assessee. 3. On the other hand the learned counsel for the respondent contested the application seeking inclusion of additional grounds in the already filed appeal on the ground that the additional ground which is now sought to be included in grounds of appeal has not been allowed by the Commissioner who reviewed the order authorizing the Deputy Commissioner to file the present appeal and no .....

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IOL-1836-CESTAT-Bang e) Shilpa Copper Wire Industries [2011 (269) ELT 17 (Guj.)] 4. I have heard the learned counsel for both the parites and perused the records. The issues which are to be decided by me are the following:- (1) Whether the input credit availed on various services by the respondent would fall under the definition of input services/input as per the definition existing prior to 01.04.2011 and whether there is a nexus between input services and the final product exported? (2) Whethe .....

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ly or indirectly, in or in relation to the manufacture of final products and clearance of final products up to the place of removal; (the words from the place of removal have been replaced by up to the place of removal w.e.f. 1.4.2008). and includes services used in relation to setting up, modernization, 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 t .....

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e of Coca Cola Vs. CCE, Pune-III and further while allowing the cenvat credit with regard to input services involved in these appeals, the learned Commissioner has relied upon various decisions of the Courts and the Tribunals and has also mentioned about the nexus. In this regard para 6.5 of the impugned order is reproduced herein: 6.5. The next issue is nexus of various input services and the manufacturing activity/business of the appellant is as follows: Sl. No. Nature of Service Nexus Relied .....

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ecifically covered under the definition of input service under Rule 2(l) of the Cenvat Credit Rules, 2004. This is a valid input service and covered by the following decision: Commr. of C.Ex. Meerut-II V. Hindustan Coca-Cola Beverages Ltd. 2011 (27) ELT 314 (Tri.-Del.) 3. Chartered Engineering Service Chartered Engineering Service towards safety and environment matters and employees training with respect to quality, production The said input service is an essential input service. Covered by case .....

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rier Services Receiving and dispatching documents related to production and sales The said input service qualified as an essential input service, the absence of which might adversely impact the quality and efficiency of the provision of output service in terms of definition of input service under Rule 2(l) of the Cenvat Credit Rules, 2004 and covered by the following decisions: CCE Vs. Delloitte Services India Pvt. Ltd. 2008 (11) STR 266 (Tri.) Dell International Services India P Ltd. Vs. CCE 20 .....

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Iron & Power Ltd. 2013 (287) ELT 0494 (Tri. Del.) 8 Management, Maintenance or Repair Services for goods, equipments or properties Charges incurred for maintenance and repair of machinery & other equipments This is a valid input service by definition and also covered by the following decision: CCE Vs Lupin Ltd 2012 (28) STR 291 (Tri.) 9 Rent on Immovable Property Rental charges paid for the factory premises The said input service qualifies as an essential input service in terms of defini .....

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ces Charges paid for accessing purchase orders, schedules and other related information from customers The said input service is an essential input service. Covered by the case law Dell International Services India Private Limited V CCE Bangalore 2010 (17) STR 549 (Tri.-Bang.) 12 Technical Inspection and Certification Services Professional charges towards inspection, operational & systems audit The said input service is an essential input service. Covered by the case law Dell International S .....

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material and measuring instrument This is a valid input service by definition and also covered by the following decision: CCE Vs. Cadila Healthcare Ltd. 2013 (30) STR 0003 (Guj.) 15 Rent-a-Cab Scheme Operators Services The Company procures transport/cab facilities from vendors for the customers to visit the factory for product inspection and confirmation of orders This is a valid input service by definition and also covered by the ratio of High Court of Karnataka judgment in the case of Comr. O .....

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(23) STR 25 (Tri.-Bang.) 17 Transport of Goods by Air Services Air Freight Charges incurred for raw material inputs/consumables received for production, as well as outward air freight for sending components to customers This is a valid input service by definition and also covered by the following decision: CCE Vs Dellitte Services India Pvt. Ltd. 2008 (11) STR 266 (Tri.) 18 Membership of Clubs They receive various updates related to their manufacturing technology. It helps us to improve their bu .....

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to 100% EOU on inter unit transfer, the respondents contention is that the refund sanctioning order while applying the formula for computation of eligible refund is considering the net credit eligible for refund and applying formula on the same. But as per the formula given in Rule 5 of the Cenvat Credit Rules 2004, eligible refund should be based on the total credit availed and not on credits which are eligible for refund said to be having nexus with manufacture of final products. Further the .....

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ommissioner of Central Excise and Customs Vs. Anita Synthetics Pvt. Ltd. [2014 (306) E.L.T. 133 (Guj.)] wherein the same issue was involved and the Hon ble Gujarat High Court in para 5 has observed as under: 5. However, in the facts and circumstances of the case and when on facts of the present case, the issue involved is squarely covered by the decision of this Court, which is reported to be confirmed by Hon ble the Supreme Court and the aforesaid is not as such disputed by the learned Counsel .....

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