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TMI Blog2018 (2) TMI 1678X X X X Extracts X X X X X X X X Extracts X X X X ..... terest and imposed equal penalty under Section 78 of the Finance Act read with Rule 15(3) of the Cenvat Credit Rules, 2004. 2. Briefly the facts of the present case are that the appellant is engaged in the manufacture of DG sets and also holder of service tax registration for providing taxable services viz. transport of goods by road, erection, commissioning and installation service and management, maintenance or repair services. The appellant had availed cenvat credit of service tax paid on installation and commissioning services provided by various service providers at the site on installation of their DG sets. During the scrutiny of ST-3 returns, the department found that the appellant had availed service tax wrongly on inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces in or in relation to the manufacture of final product or for provision of output service as envisaged under the definition of input service as provided under Rule 2(l) of the Cenvat Credit Rules, 2004. He further submitted that in appellant s own case, the Division Bench of the Ahmedabad Tribunal has decided the same issue in favour of the appellant, which is reported in 2016 (42) STR 299 (Tri.-Ahmd). Further, in support of his submission, he relied upon the following decisions:- (i) New Global Technologies vs. CCE, Coimbatore 2017 (4) GSTL 317 (Tri.-Chennai); (ii) Hira Industries Ltd. vs. CCE, Raipur 2012 (28) STR 23 (Tri.-Del.); (iii) Vijay Sharma & Co. vs. CCE, Chandigarh &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perusal of the records and careful consideration of the arguments of both sides, we find that "input service" has been defined under the provisions of Rule 2 (l) of the Cenvat Credit Rules, 2004 which is reproduced below:- (l) "input service" means any service, - (i) used by a provider of taxable service for providing an output service, or (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal, and includes services used in relation to setting up, modernisation, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also find that in the case of Koch-Glitsch India Ltd. vs. CCE, Vadodara-I 2009 (13) STR 636 (Tri.Ahmd.), the Ahmedabad Bench of the Tribunal, on an identical issue, also decided in favour of the assessee. The relevant finding is contained in para 3 which is reproduced herein below:- "3. We considered the submissions. We feel that the judgments of the Tribunal stated by the appellant above clearly cover the issue even though they do not relate to the service tax. It is not in dispute that sub contractor provided the service to the main contractor and they were not accountable to the service receiver. Appellant clearly had a choice to pay service tax themselves instead of making the sub contractor pay service tax and take ..... X X X X Extracts X X X X X X X X Extracts X X X X
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