TMI Blog2021 (7) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... an there is no basis for denial of such nexus for the subsequent period - also, it is a settled position of law that there cannot be two different yardsticks i.e., one for allowing refund and the other for deciding the eligibility of CENVAT credit. In the case of CST, DELHI VERSUS CONVERGYS INDIA PVT. LTD. [ 2009 (5) TMI 50 - CESTAT, NEW DELHI] , it has been held by the Division bench of the CESTAT, Delhi that there cannot be two different yardsticks, one for allowing refund and another for deciding eligibility of CENVAT credit. The impugned order denying the CENVAT credit on impugned services is not sustainable in law more so when refund relating to the impugned services has already been granted to the appellant - Appeal allowed - decided in favor of appellant. - Central Excise Stay Application No. 29117 of 2013 and Central Excise Appeal No. 28419 of 2013 - Final Order No. 20648/2021 - Dated:- 26-7-2021 - MR. S.S GARG, JUDICIAL MEMBER AND MR. P. ANJANI KUMAR, TECHNICAL MEMBER For the Appellant : Mr. Prasad. P, Advocate For the Respondent : Mr. P. Gopakumar, Joint Commissioner (AR) ORDER The present case was listed for disposal of stay. Since the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eply to the show-cause notice explaining the justification and nexus between the input service availed for rendering output service. After following the due process, the learned Commissioner confirmed the entire demand along with 100% penalty and applicable interest by holding that the impugned services received by the appellant do not have any nexus with the taxable services provided by the appellant and secondly, the absence of such services would not directly have an impact on the quality and efficiency of the provision of taxable services. Aggrieved by the said order, appellant is before us. 4. Heard both the parties and perused the records. 5. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the definition of input service as provided in Rule 2 (l) of CENVAT Credit Rules, 2004. He further submitted that for the same impugned services for the prior period, CENVAT credit has been allowed and subsequently, the refund has also been allowed. He further submitted that the impugned services certainly qualify as eligible for CENVAT credit based on the statutory definition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... change in the fact or in the law or the department has been able to come out with a new ground to change its earlier view, the Principle of Consistency warrants that the departmentshould be estopped from taking a contrary view than the view taken for theprevious period unless the order passed for the prior period is reversed by the competent authority. For this submission, he relied upon the decision of the apex court in the case of Radhasoami Satsang vs. Commissioner of Income Tax: (1992) 1 SCC 659. The learned counsel further submitted that the department itself has accepted the nexus between the input services and the output services rendered by the appellant for one period and unless contrary is proved or thee is change in law, there is no basis for denial of such nexus for the subsequent period. The learned counsel also submitted that for the prior and concurrent periods, appellant had applied for refund of accumulated CENVAT credit and the same was allowed on very same input services as were covered in the present appeal. The learned counsel also placed on record the decision of the department pertaining to the period April 2007 to September 2007 and also for the period Apri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... products from the place of removal and includes services used in relation to setting up, modernization, 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, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry and security, inward transportation of inputs or capital goods and outward transportation upto the place of removal; 7.1 Further, the department vide Notification No.3/2011-CE dated 1.3.2011 amended the definition of input service by introducing exclusion clauses. During the relevant period, the definition of input service was very wide and the Tribunal has also recognised the wide import of the word used in the definition through the case law of M/s. Dell International Services India Pvt. Ltd. vs. CCE, Bangalore: 2010 (17) STR 540 (Tri.-Bang.) by holding that the definition of input service is of a very wide interpretation for the following reasons: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entially in the company s interest to carry out its business activities effectively. The employees have to reach on time to deliver services and accordingly transport services of vendors are being utilized. Hence, the same is essential for the business operations of the company. 7.3 Further, we find that for the immediate preceding period October 2006 to March 2010 for the same impugned services as involved in the present appeal, the learned Commissioner vide its order dated 10.10.2012 has dropped the proceedings and the department has not filed the appeal against the same. We further note that Principle of Consistency warrants that the department should not have taken a contrary view in the present case in view of the apex court s decision in the case of Radhasoami Satsang vs. Commissioner of Income Tax cited supra. Further, we find that the adjudicating authority does not dispute the usage of impugned input services for providing the output services but has disallowed the credit only on the ground that these are not connected with the business activity or not necessary for providing output service. In this regard, we note that once for the previous period such nexus has been a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
