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TMI Blog2019 (7) TMI 1651X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2004 for unutilized Cenvat credit for the period April, 2014 to June, 2014. The refund claim was filed for Rs. 7,27,52,794/- in respect of various input services which remained unutilized during the period April, 2014 to June, 2014 and hence proportionate unutilized credit against export of goods made during the said period was claimed as refund as per the provisions of Rule 5 of the Cenvat Credit Rules, 2004. The Appellant further submits that out of refund claim of Rs. 7,27,52,794/-, the department has allowed refund of Rs. 1,75,79,982/- and balance refund of Rs. 5,51,72,812/- has been rejected. 2. The Appellant has contested refund claim rejected to the tune of Rs. 5,51,72, 812/- vide Excise Appeal Number 75319 of 2017 and depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o argued that the show cause notice solely rejected refund application without disputing on the ground that whether credit was eligible or not. It was only in the adjudication order i.e. Order-in-Original, it was the observation of the adjudicating authority that such input services were used for the setting of factory and hence does not quality within the definition of input service as provided in Rule 2(l) of the Cenvat Credit Rules, 2004. The Appellant argued that as such denial of credit was not alleged in the Show Cause and thus the same cannot be adopted in Order-in-Original. It a settled legal position that adjudication order cannot go beyond what has been alleged in show cause notice. 5. It is not the case of the department that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms of Rule 2(l) of the Cenvat Credit Rules, 2004. 8. Let us examine the definition of input services as it stands during two different periods i.e. prior to 28th February, 2011 and post 1st March, 2011. Definition of Input Service Prior to 31st March, 2011 (Old Definition) 2 (l) "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 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 rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces including service listed under clause (b) of section 66E of the Finance Act (hereinafter referred as specified services) in so far as they are used for - (a) construction or execution of works contract of a building or a civil structure or a part thereof; or (b) laying of foundation or making of structures for support of capital goods, except for the provision of one or more of the specified services; or (B) services provided by way of renting of a motor vehicle......." 9. On conjoint reading of above definitions, it can be observed that the substantive part in respect of eligibility of credit in respect of input service has remained the same, being used by the manufacturer, whether directly or indirectly, in relation to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kind of input services viz. Business Auxiliary Service, Business Support Service, Clearing and forwarding service, erection commissioning and maintenance service, information technology service, renting of immovable property service, technical testing services has been taken by them during the set up stage of the manufacturing unit. These services do not form part of such exclusion clause, hence they are clearly available as credit. Moreover, adjudicating authority has admitted in the impugned order that the input services on which credit has been availed were essential for running of business and a pre condition for manufacturing final product. This also goes long way in establishing the fact that these services were eligible. 12. In vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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