TMI Blog2021 (3) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... e - Tour Operator Services - denial on the ground that appellant failed to produce substantial evidence to support its stand that travel by its employees were meant for official work like sales promotion or to enhance the business of the company - HELD THAT:- There is no reason to disbelief the call letters placed in additional submission at page 30 and 32 and accept the same as additional evidence as per Rule 23(2) of the CESTAT Procedure Rules so as to meet the requirement of Rule 9(5) of the CENVAT credit Rules, 2004. Even otherwise also presumption of an official tour goes in favour of the invoice referred above that had been disbelieved by the learned Commissioner (Appeals), in view of the short duration of the travel by the General Manager of the appellant s Company alone. However, this is not the stage to scrutinise documents while deciding an appeal to find out conclusive proof of the nature of CENVAT credit availed, for which reassessment at the adjudication level would be the only way out. Courier Services - H ELD THAT:- Tribunal in respect of previous period of the appellant that allowed courier service inputs for necessary availment of credit - Credit allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t department proposing to deny CENVAT credit availed on various services that ultimately took him to the Commissioner (Appeals) s stage, after the entire demand against credits, as proposed in the show-cause notice, was confirmed by the adjudicating authority. Learned Commissioner (Appeals) vide his order dated 11.03.2019 allowed a portion of credit but disallowed the above referred credits primarily on the ground that business related activities are no longer covered within the definition of input service w.e.f. 01.04.2011 and exclusion clause appended to such definition disentitled the appellant to avail CENVAT credit on those services. Appellant questions the legality of such order in this Tribunal. 3. Both parties argued at length on the issue with reference to CENVAT credit rules and judicial precedent, which will be dealt at the appropriate places. Before going to the issue in hand it is imperative to have a look at Rule 2 that defines input service existing w.e.f. 01.04.2011 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in relation to the manufacturer of final products and clearance of final products up to the place of removal. A clear meaning that can emerge from this sentence is that whatever input services are utilised during the manufacturing process till the final product is brought for clearance would be covered within the definition of input service and the manufacturer is entitled to get credits on all those input services; (b) The second component of Clause 2(ii) contains item wise categorisation of inputs which are peripheral to such manufacturing process but may not be essential requirements to carry out the manufacturing. Those inputs are included within the definition for availment of CENVAT credits and when the unamended definition puts those in categories with starting words that reads such as , the present Rule defines and confines it to those specific services like renovation modernization, advertisement sale promotion, marketing research, legal services etc. by way of substitution of the words such as with the word includes . These services though are optional without which manufacturing can be completed, they have became some time essential to the manufacturing proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ger Bench of this Tribunal in the case of M/s Wipro Limited Vs. CCE Bangalore III reported in 2018 TIOL-3256CESTAT-BANG.-LB, in which reference of a Single Member Bench about availability of CENVAT credit to the manufacturer on outdoor catering service is made and it was held to be not eligible for input service credit post amendment dated 01.04.2011 vide Notification No. 03/2011 dated 01.03.2011. Going by the reference order at sub-para 3(1) of the above referred M/s Wipro Limited judgment it can be noticed that the judgment of Hindustan Coca Cola Beverages Pvt. Ltd. Vs. CCE, Hyderabad reported in 2016 TIOL-2223-CESTATHyderabad, wherein such canteen services provided in the factory premises by the employer in compliance with the Factory Act, 1948 was allowed for availment of CENVAT credit, was referred to the Larger Bench for an answer as to if such statutory requirements are covered and argument of the appellant there was also placed on record at para 4.2 of the said M/s Wipro Limited judgment to the effect that such statutory compliance cannot be equated with primarily for personal use of consumption of employees but it was not dealt with and answered in the M/s Wipro Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite applicable to meet the statutory need of establishment of a canteen, may be through outdoor catering, under the Factories Act. Therefore, in the absence of the finding in the M/s Wipro Limited judgment that has not dealt with the reference to it on statutory requirement vis. a. Vis. availment of CENVAT credit and in view of the decision of Hon'ble Madras High Court that held it in favour of such availment of CENVAT credit on statutory requirement, I am of the considered view that appellant is entitled to avail such credit provided the amount is paid by it and not collected from the individual employees to meet the expenses and such a settled position of law is not required to be reopened by any further reference to the larger bench in view of the operation of explanation-V to Section-11 of the CPC and not the main provision of Section 11, placing reliance on which judgement of Sunbel Alloys Co. Of India Ltd. reported in 2015 (316) ELT, 353 (Bom.) that was delivered in an altogether different factual matrix. When a factory can t functioning without fulfilling statutory requirements, tax paid to meet such requirement is to be accepted as eligible credit otherwise there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial discipline, decorum and an unfortunate scenario. This also clearly demonstrates lack of acumen of the Commissioner (Appeals) who read part of the reasoning given in the above referred CESTAT judgment at para 7 and failed to record the specific ground cited in its subsequent narrations wherein the Hon'ble CESTAT had observed that movement of goods from factory to depot that is the place of removal were done on stock transfer basis through service of courier from factory to depot. This being the findings of the Tribunal in respect of previous period of the appellant that allowed courier service inputs for necessary availment of credit on it, I honour the same and bind myself to judicial precedent in allowing credits on courier services to the appellant. 5.4 Goods Transport Operator:- Last but not the least claim of the appellant to avail goods transport operator service for a meagre amount of ₹ 624/- needs no consideration as the same had been allowed by the Commissioner (Appeals) in para 9 of his order and the amount placed in the table of appeal memo matches with the figures shown for which this amount of ₹ 624/- against which claim is made is based on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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