TMI Blog2019 (7) TMI 1651X X X X Extracts X X X X X X X X Extracts X X X X ..... en made effective from 1stApril, 2011 vide Notification no. 3/2011-CE (NT) dated 01.03.2011 and accordingly several exclusions have been brought in the definition of Input services, which did not exist, in the prior period. Moreover, the term services used in relation to setting up of the factory has been removed from the definition, being replaced by specific exclusions. Thus, based on such amendments, the department has argued that credit in respect of input services which were used for setting up of the factory shall not be allowed. Such narrow interpretation, without even considering changes made in the definition of input services shall lead to wrong conclusion. The refund claim filed by the Appellant is for the period April, 2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 7,27,52,794/-, the department has allowed refund of ₹ 1,75,79,982/- and balance refund of ₹ 5,51,72,812/- has been rejected. 2. The Appellant has contested refund claim rejected to the tune of ₹ 5,51,72, 812/- vide Excise Appeal Number 75319 of 2017 and department has challenged refund sanctioned by the lower authority to the tune of ₹ 1,75,79,982/- vide Excise Appeal Number 75302 of 2017 on the sole g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 input services received by the Appellant have not been utilized for the manufacture of final products or whether the goods have been manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent 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 relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the manufacture of final product. It is the inclusive part wherein amendment has been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring 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 view of the above discussion, the appeal filed by the appellant Revenue being Excise Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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