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TMI Blog2016 (6) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... the credit allowed for Rs. 1,02,189/ by original authority. In appeal, the Commissioner (Appeals) vide order impugned herein held that appellant is not eligible for credit of Rs. 1,02,189/ and confirmed recovery of same along with interest and imposed penalty of Rs. 51,095/. Being aggrieved the appellant has filed the present appeal 2. The issue for consideration is whether appellant is eligible for credit on certain works contract service during the period April 2011 to December 2012. 3. On behalf of the appellant the learned counsel Shri Karan Talwar explained the works carried out in the factory by appellant for which service tax was paid under the category of works contact service. It is submitted that in line with the business requirements, the appellant made certain changes in the production process, factory layout, and made improvements to the existing facilities to increase volume of production and also to improve quality of the product. Civil contractors were engaged to carry out certain works. The appellant availed credit of service tax paid for such works contact services. The credit has been disallowed by Commissioner(Appeals) on the ground that these ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality control, coaching and training, computer networking, credit rating, share registry and security, inward transportation of inputs or capital goods and outward transportation upto the place of removal. After 01.04.2011 to 30.06.2012, the definition 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 a manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products up to the place of removal, and includes services used in relation to 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 the place of removal, procurement of inputs, accounting, auditing financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation up to the place of removal; but excludes services, - (A) sppcified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l goods. The inclusion part of the definition having retained the words "Modernisation, renovation, repair" even after 01/04/2011, the construction works undertaken on an existing building, civil structure or foundation etc ; would be covered by the inclusive part of the definition itself. That such works therefore cannot fall in exclusion part of the definition. That such works would fall in the exclusion portion only if the construction works are in respect of new building, civil structure, foundation etc. 7. It is urged by counsel that after amendment w.e.f. 01.07.2012, the specified services mentioned in the exclusion part of the definition is confined to clause (b) of 66 E of the Finance Act, 1994. This was due to introduction of negative list in 2012. In all other respects, the exclusion part of the definition remained the same. That therefore what is excluded, is the service portion in the execution of works contract and construction services, in so far as they are used for construction of new building or civil structure and laying of new foundation. That though the word "new" is not mentioned in the exclusion part of the definition, while reading the incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act service of new building or new civil structure or laying of new foundation and not any works contract service of existing building, civil structure or foundation. 10. Another argument put forward by the counsel is that the works done by the appellant are merely works done by the appellant are merely works of upgradation of ETP, Flooring works and pipe erection and foundation works for cooling tower. The exclusion portion deals with service portion of works contract services of building, civil structure or part thereof, etc. That by applying the principle of noscitur a sociis, it can be seen that the works done by appellant do not fall in the category of works of building, civil structure or part thereof. That therefore the works do not fall in the exclusion portion and credit cannot be disallowed. 11. To press his arguments, various judgments were relied. The strong argument advanced is that if the works contract service mentioned in the exclusion part of the definition of input service if not confined to works undertaken for new building, new civil structure, or laying of new foundation, the words "modernisation, renovation, repairs "contained i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it is specifically mentioned. 14. Refuting the above contentions put forward by appellant, the learned AR, Sri V.K. Shastri, reiterated the findings in the impugned order. He submitted that the plain reading of the exclusion part of the definition makes it very clear as to what is excluded. It offers no ambiguity. The words in the exclusion portion being very clear, it cannot be said that only works contract services in regard to construction of new building, new civil structure, or laying new foundation alone is excluded. The service portion of works contract and construction services in so far as they are used for construction of building, civil structure or foundation whether new or existing is excluded. What is allowed is only service tax paid for services like modernisation, renovation and repair works which do not fall into the category of construction of building, civil structure or laying of foundation. That input service credit is not eligible for such construction services in respect of building, civil structure, laying foundation and that the authority below has rightly disallowed the credit. 15. I have given anxious consideration to the detailed argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaning of works contract service given in Section 65 (105)(zzzza) to support his arguments. I am not able to persuade myself to accept this argument. The definition of input service is contained in CENVAT Credit Rules, 2004. The counsel attempts to draw support from the meaning of works contract service contained in the Finance Act, 1994. The exclusion portion of the definition of input service lends no ambiguity so as to borrow the meaning contained in another statute. I do not think that there is any need to resort to any external aid like referring to the meaning contained in another statute what is intended to be excluded by the Parliament is the service portion of works contract services insofar as it relates to construction of building, civil structure or part thereof or laying foundation or works of support structure to capital goods. This cannot mean that such works are to be in respect of new building, new civil structure, new foundation etc., because the inclusive portion already contains the words, renovation, modernisation and repair. For eg. - If a building inside factory is totally demolished and a new building is constructed, the credit in my opinion would not be ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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