TMI Blog2021 (7) TMI 1383X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 (SM) - FINAL ORDER NO. 52128/2021 - Dated:- 8-7-2021 - HON BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) For the Appellant : Ms. Sukriti Das and Ms. Nitasha Nema, Advocates For the Respondent : Shri P. Juneja, Authorised Representative ORDER ANIL CHOUDHARY: 1. The issue involved in this case is that the Appellant is engaged in the manufacture of pneumatic tyres, used in agricultural/forestry/other machines and motor vehicles, ( final products ) falling under Chapter 40 of the First Schedule to the Central Excise Tariff Act, 1985. 2. During the course of Audit for the relevant period, i.e. July 2012 to September 2016, it appeared to Revenue that the Appellant had availed CENVAT credit on certain ineligible services relating to civil work, erection of steel structure, gate fixing, fixing of pipe railing, zeena (stair case), fabrication work and shed fabrication work which were in the nature of works contract services/construction services, hence, excluded from the purview of definition of input service under Rule 2(l) of the CENVAT Credit Rules, 2004 ( Credit Rules ). SCN dated 16.5.2017 3. In the above factual background, a Show Cause Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant, the Ld. Commissioner (Appeals), vide the impugned OIA upheld the denial of CENVAT credit amounting to Rs. 39,33,062 along with interest and also imposed penalty on the grounds that the services of erection of steel structure, gate fixing, fixing of pipe railing, zeena fabrication work and shed fabrication work are in the nature of construction/works contract service, and thus barred by Exclusion clause (A) to Rule 2(l) of the Credit Rules. 7. Being aggrieved with the aforesaid impugned Order, the Appellant has filed the present appeal on following submissions, which are independent of and without prejudice to each other. It is urged that the present written submissions may be treated as part and parcel to the detailed submissions already made in the memorandum of appeals: 8. Ld. Counsel for the appellant urges that the Appellant is eligible for CENVAT credit on the input services in question under the means clause, i.e. means any service ..used in or in relation to the manufacture of final products of the definition of input service. It is submitted that even post the amendment in definition of input service w.e.f. 01.04.2011, the means clause‟ contin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their purview, expansion of an existing building and the miscellaneous works carried out thereon. 12. It is urged that whenever a thing or a part of a thing is worn out and a new thing is replaced in its place, such replacement of a new thing amounts to repair‟ of that thing. Further, whenever something is adapted or changed, to bring it in tune with present-day requirements, it would get covered under the term modernization‟. The term renovation‟ includes the carrying of repairs and also includes the act of making or creating a new thing. These submissions are made in light of various dictionary meanings given to these terms, which are being relied upon in the present matter. Therefore, it is evident that the words modernization‟, renovate‟, and repair‟ as defined by various standard dictionaries, are of wide import and would cover a variety of activities. 13. Thus, it is urged that even after the amendment in the definition of input service w.e.f. 01.04.2011, credit on services used in relation to modernization, repair and renovation would still be admissible. 14. Further, it is urged that in the present matter, Cenvat credit has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le as input service under the category of modernization/ renovation. Hindustan Zinc Ltd. v. CCGST, Final Order No. 51617-51618/2021 dated 22.6.2021 Hindustan Zinc Ltd. v. CCE, Udaipur, 2018 (3) TMI 102 CESTAT NEW DELHI Hindustan Zinc Ltd. vs. CCE ST 2020 (8) TMI 2 CESTAT New Delhi Bharat Oman Refineries Ltd. v. CGST, CE CC, Bhopal, 2019 (2) TMI 746 CESTAT NEW DELHI 4. Installation of Sliding Door Track/gate-fixing Appellant installed sliding door tracks in the solvent area, which included dismantling activity, followed by fixing of angles to make the door track functional. Such activity is included in renovation and modernization of the Appellant's premises, and consequently, covered within the inclusive part of the definition. Hindustan Zinc Limited vs. Commissioner, CG ST, Udaipur 2020 (8) TMI 1 CESTAT New Delhi; Hindustan Zinc Limited vs. CCE ST 2016 (9) TMI 942 CESTAT New Delhi; Grasim Industies Limited vs. Commissioner of CGST ST, CE Cus. 2020 (4) TMI 673 5. Miscellaneous Works: (a) Fixing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on facts and thus not applicable to the present case. 18. Ld. Counsel urges that the denial of credit to the Appellant is improper and unjustified and thus, the impugned Order being bereft of merits, is not sustainable and deserves to be set aside. THE IMPUGNED ORDER IS A NON-SPEAKING ORDER ANDREVEALS COMPLETE NON-APPLICATION OF MIND AND IS LIABLE TO BE SET ASIDE ON THIS GROUND, ALONE 19. It is submitted that the Ld. Commissioner (Appeals) has upheld the demand by merely reiterating the findings/allegations of the OIO and SCN and without considering the submissions and settled judicial precedents in favour of the Appellant. No findings with respect to non-invocation of extended period and imposition of penalty upon the Appellant has been recorded in the impugned Order. In this regard, reliance is placed on Master Circular on Show Cause Notice, Adjudication and Recovery Reg. issued vide Circular No. 1053/2/2017 CX, dated 10.3.2017 which mandates that cogent findings on all issues including that of limitation and penalties are required to be recorded in an order. None of the submissions has been considered by the Ld. Commissioner(Appeals) while upholding the denial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r confirming the allegations of the SCN is not sustainable and is liable to be set aside. EXTENDED PERIOD OF LIMITATION IS NOT INVOKABLE; PENALTY IS NOT IMPOSABLE AND INTEREST IS NOT RECOVERABLE. 25. She also urges that the SCN was issued on 16.5.2017 for the period from July 2012 to September 2016 by invoking the extended period of limitation. It is submitted that the same is not invokable since there is no allegation of fraud, suppression, etc. and all the information was available with the department, therefore the demand for the period upto April 2015 is time barred and is liable to be set aside. 26. She further urges that in Para 18 (iv), the Assistant Commissioner in the OIO has held that the Appellant had filed its ER-1 returns showing the details of CENVAT credit, however details of the input services was not intimated to the department thus resulting in suppression of facts. In this regard, it is submitted that the Appellant has duly complied with its obligations of filing statutory returns and disclosed the amount of CENVAT credit availed and thus cannot be held accountable for not disclosing the nature (item wise) of input service, when the same is not requi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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