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2016 (3) TMI 1117 - CESTAT MUMBAI

2016 (3) TMI 1117 - CESTAT MUMBAI - TMI - Cenvat credit - construction service, erection, commissioning and installation service, works Contract service, consultancy engineer's service, business auxiliary services and business support services - services used for erection of BTS Towers - Held that:- services of construction and works contract are excluded from the definition of input service, therefore the Cenvat Credit on the said two services are disallowed. As regard other services there is a .....

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erefore the credit cannot be denied on these services. Similarly, the services like erection, commissioning and installation and consultancy engineer’s service are also not excluded in the amended definition of input service. Therefore in my considered view, except the construction service and works contract service the credit on other services are admissible. - Imposition of penalty - Held that:- the issue relates to the interpretation of definition of input service and on most of the serv .....

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(Judicial) Appearance Shri S.S. Gupta, C.A. for Appellant Shri B.Kumar Iyer, Supdt. (A.R) for respondent ORDER The appeal is directed against Order-in-Original No. 27/ST/RN/SCL/MIII/13-14 dated 26.03.2014 passed by the Commissioner of Central Excise, Mumbai-II, wherein the Ld. Commissioner out of total credit of ₹ 1,28,27,801/- proposed to be disallowed in the show cause notice dt. 26.3.2013, an amount of ₹ 5,27,136/- was disallowed on the services, such as Consulting Engineers Serv .....

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sioner while disallowing the credit on aforesaid services observed as under: The input service namely Construction Service Erection & Commissioning Service are pertaining to creation of the immovable structures, viz., BTS Towers & Shelters which do not qualify to be either Capital Goods or Inputs, as already discussed above. These services do not have any direct nexus with the output services being rendered by the Noticee i.e. Telecom Service . The expression Activities relating to busin .....

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tion of BTS Towers and shelters & other services such as Consultancy Engineers Services, Design Services, Technical Testing & Analysis service to the tune of ₹ 5,27,136/-. Aggrieved by the adjudication order the appellant is before me. 2. Shri S.S. Gupta Ld. Chartered Accountant along with Manoj Chauhan Chartered Accountant appeared on behalf of the appellant. He fairly concedes that Cenvat Credit in respect of construction and works contract is not admissible after 1.4.2011 as th .....

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He further submits that the Ld. Commissioner firstly disallowed the credit considering the services as Erection, Commissioning and Installation, Design Services, Technical Testing & Analysis service whereas the services are erection, commissioning and installation service, consultancy engineer s service, business auxiliary service & business support services. Therefore, the finding of the Ld. Commissioner is wrong on the basis that the services involved is different from the services con .....

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ita Storages (P) Ltd. 2011 (23) S.T.R. 341 (A.P.) (ii) Mundra ports and Special Economic Zone Ltd. Vs. Commissioner of Central Excise and Customs 2015-TIOL-1288-HC-AHM-ST (iii) Commissioner of Central Excise Commissionerate, Delhi-III Vs. M/s. Bellsonics Auto Components India P. Ltd. 2015 (7) TMI 930-PUNJAB & HARYANA HIGH COURT (iv) Commissioner of C.Ex. Ahmedabad-II Vs. Cadila Healthcare Ltd. 2013 (30) S.T.R. 3 (Guj.) (v) Navratna S.G. Highway Prop. Pvt. Ltd. Vs. Commr. of S.T., Ahmedabad 2 .....

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rectly denied the credit. In support he placed reliance on the following judgments: (i) Bharti Airtel Ltd. Vs. Commissioner of C. Ex., Pune-III 2014 (35) S.T.R. 865 (Bom.) (ii) Vodafone India Ltd. Vs. Commissioner of Central Excise 2015-TIOL-2098-HC-MUM-ST 4. I have carefully considered the submissions made by both the sides. I find that the appellant is providing telecom services. They availed Cenvat Credit in respect of construction service, erection, commissioning and installation service, co .....

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n, Commissioning & Installation Service 204,810 Woks Contract Service 109,431 Consultancy Engineer s Services 8,240 Business Auxiliary Services 86,015 Business Support Services 17,011 Total 527,136 From the above chart, it is clear that there are some different services as mentioned by the Ld. Commissioner in the impugned order then the claim of the appellant. I find that there is a amendment in the definition of input service w.e.f.1.4.2011 the amended definition reads as under: (1) input s .....

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rket research, storage upto 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 upto the place of removal; but excludes services, - (A) specified in sub-clauses (p), (zn), (zzl), (zzm), (zzq), (zzzh) and (zzzza) of clause (105) of section 65 o .....

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f taxable services for which the credit on motor vehicle is available as capital goods; or (C) such as those provided in relation to outdoor catering, beauty treatment, health services, cosmetic and plastic surgery, membership of a club, health and fitness centre, life insurance, health insurance and travel benefits extended to employees on vacation such as Leave or Home Travel Concession, when such services are used primarily for personal use or consumption of any employee; . From the above def .....

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contract are excluded from the definition of input service, therefore the Cenvat Credit on the said two services are disallowed. As regard other services there is a dispute between the Ld. Commissioner and the appellant that some of the services like design service, technical testing and analysis service are in fact business auxiliary service and business support service, which needs verification by the adjudicating authority. However, irrespective of difference of service whether it is design .....

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