TMI Blog2019 (10) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... t be sustained and the same is set aside - Appeal allowed - decided in favor of appellant. - Appeal No. E/57483/2013 -[DB] - Final Order No. 60891 of 2019 - Dated:- 22-10-2019 - HON BLE MR. ASHOK JINDAL, MEMBER (JUDICIAL) AND HON BLE MR. RAJU MEMBER, (TECHNICAL) Ms. Priyanka Singhal, Advocate for the Appellant Shri H.S. Brar, Authorised Representative for the Respondent ORDER PER RAJU: This appeal has been filed by Mitsuba Sical India Ltd. against denial of Cenvat credit and imposition of penalty. 2. The Ld. Counsel for the appellant pointed out the main proceedings seek to deny Cenvat credit on the construction service availed during the period of 2008-09. He pointed out that they are engaged in the manufacture of motor vehicle parts and the said service was availed for construction of its own manufacturing premises. He pointed out that the impugned order is relied on CBEC Circular No. 98/1/2008-2011 to deny the Cenvat credit. The impugned order also relied on decision of Larger bench of the Tribunal in the case of Vandana Global Ltd Vs. Commissioner- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods or not has to be determined in the light of the decisions of the Hon ble Supreme Court on the issue, which is no longer res integra. (b) Goods like cement and steel items used for laying foundation and for building supporting structures cannot be treated either as inputs for capital goods or as inputs in relation to the final products and therefore, no credit of duty paid on the same can be allowed under the CENVAT Credit Rules for the impugned period. 4. In the light of the contents of the impugned order of the Tribunal and submissions of the assessee and the Revenue following substantial questions of law are formulated for consideration : (A) Whether the terms capital goods excludes the structures embedded to earth? (B) Whether the goods like angles, joists, beams, bars, plates, which go into fabrication of such structures are not to be treated as input used in relation to their final products as inputs for capital goods, or none of the above? (C) Is the amendment brought in CENVAT Credit Rules, 2004 as per Rule 2 of the CENVAT (Amendment) Rules, 2009 retrospective in nature c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve effect, while doing so the provision under consideration is neither made retrospective nor could it be treated as one. 8. We are in complete agreement with the ratio of Mundra Ports (supra) and M/s. Thiruarooran Sugars (supra) on all fours. 9. Resultantly, we answer the questions formulated in these appeals in favour of the assessees and against the Revenue. 10. In the result, the appeals of the assessees are allowed setting aside the Tribunal s decision impugned in each of those appeals. The appeals filed by the Revenue are dismissed. However, no order as to costs. 5. it is seen that the appellant has pointed out that the issue is covered by the decision of the Tribunal in case of Bellsonica Auto Components India P. Ltd (Supra). It is noticed that in following paragraphs as observed : 6.The department contended that said services were not eligible for Cenvat credit and accordingly issued show cause notice for recovery of the credit along with interest and for imposition of penalty. The commissioner confirmed the demand along with interest and imposed penalty. The Commissioner held as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the final product and for the clearance thereof up to the place of removal. But for the factory the final product could not have been manufactured and the factory needed to be constructed on land. The land and the factory are used by the manufacturer in any event indirectly in or in relation to the manufacture of the final product, namely, metal-sheets. The respondents case, therefore, falls within the first part of Rule 2(l) aptly referred to by Mr. Amrinder Singh as the means part. 9. The respondents case also falls within the second part of Rule 2(l) i.e. the inclusive part. The definition of the words input service also specifically includes the services used in relation to setting up of a factory. Mr. Amrinder Singh rightly contended that it was not the appellant s case that the services were not used for the setting up of the factory. The doubt in this regard is set at rest by the second part of Section 2(l)(ii) which includes within the ambit of the words input service the setting up of a factory and the premises of the provider of the output service. The inclusive definition, therefore, puts the matter, at least so far as the payment for s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Bench of the Bombay High Court in Coca Cola India Pvt. Ltd. v. Commissioner of C. Ex., Pune-III, 2009 (242) E.L.T. 168 (Bom.). = 2009 (15) S.T.R. 657. The Division Bench construed Section 2(l) as follows :- 39. The definition of input service which has been reproduced earlier, can be effectively divided into the following five categories, in so far as a manufacturer is concerned : (i) Any service used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products, (ii) Any service used by the manufacturer whether directly or indirectly, in or in relation to clearance of final products from the place of removal, (iii) Services used in relation to setting up, modernization, renovation or repairs of a factory, or an office relating to such factory, (iv) Services used in relation to advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, (v) Services used in relation to activities relating to business and outward transportation upto the place of removal; ..... X X X X Extracts X X X X X X X X Extracts X X X X
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