TMI Blog2023 (2) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to setting up of the premises are also services used for providing output service, as without the premises being set up, the service provider cannot effectively render any taxable output service. Hon ble Bombay High Court in the case of M/S. COCA COLA INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE, PUNE-III [ 2009 (8) TMI 50 - BOMBAY HIGH COURT ], has held that credit would be admissible, if the services are covered by any of the limb of the definition of input service. It is an undisputed position that prior to 01.04.2011 services in relation to setting up of the premises were clearly covered in the inclusive part of the definition of input service squarely,which position has been accepted by the adjudicating authority and has not been disputed by the Revenue in their appeal. Cenvat credit disallowed by the adjudicating authority on the ground that services in respect to setting up had been received after 01.04.2011 - HELD THAT:- The assessee-appellant has demonstrated by producing copies of invoices, that none of the services pertaining to setting up were received after 01.04.2011 and that it was merely a case of invoice having been raised after such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court in the case of Mundra Ports SEZ Ltd., [ 2015 (5) TMI 663 - GUJARAT HIGH COURT ] have clearly recorded that credit on such items would be admissible as inputs to a service provider prior to 01.04.2011, as the same are required for setting up of the premises from where the services are being rendered. The High Court has clearly recorded that the bar which was introduced in the definition of inputs by explanation (2) w.e.f. 07.07.2009, would apply only to a manufacturer and not to a service provider. Applying the ratio laid down by the Gujarat High Court, the assessee-appellant is entitled to credit on goods used for setting up their premises prior to 01.04.2011 - As has been fairly admitted by the assessee-appellant, that an amount of Rs.38,39,364/- out of the total amount of credit in dispute of Rs.3,25,73,700/- on capital goods pertaining to goods which have been removed as such. The said amount has rightly been reversed as provided for in Rule 3(5) of the Cenvat Credit Rules and that even though credit of such goods could have been admissible, the goods having been cleared as such, reversal in respect of the same was warranted. Insofar as the balance credit which has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the assesse-appellants as well as the Revenue have preferred these appeals before the Tribunal. 3. Briefly stated, the facts of the case are that the appellants herein M/s. Reliance Corporate IT Park Ltd., are engaged in rendering the taxable services under the category of Information Technology and Information Technology enabled services and for that purpose,got themselves registered with the Service Tax department. Prior to the period 01.04.2011, the appellants have received various goods and services, which wereinteralia used in relation to setting up of the premises, from where they had rendered the output services. The appellants had also availed Cenvat credit on goods and services, between the period from 2009-10 to 2012-13, which were interalia used for operating the facilities from where services were rendered and also for repairing and maintaining the same. 3.1 On the basis of EA-2000 audit report, Cenvat credit availed on goods and services used for setting up of the appellants premises was sought to be disallowed on the ground that the said goods and services were used for construction of immoveable property and not for rendition of the taxable output service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service. He further submitted that the services attributable to the setting up of the premises had been received by the appellants prior to the period 01.04.2011 and that on the basis of the finding of the adjudicating authority itself, such credit was admissible, as the services were received prior to the date of amendment of the definition of input service. With regard to the issue of availment of Cenvat credit on capital goods, it has been contended that even if the goods were not eligible to credit as capital goods, there being no dispute regarding their utilization for provision of output service, credit as inputs would be available on the same. On the aspect of failure to provide originals of some of the duty paying documents is concerned, it is contended that there was no dispute regarding the receipt, consumption and utilization of the said goods for the intended purpose.It has also been contended that the credit had been availed only against original of the duty paying documents and that non-submission of some of the original invoices during the course of audit conducted at a much later date could not be a valid ground for denying the benefit of Cenvat credit. The assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the services are covered by any of the limb of the definition of input service. It is an undisputed position that prior to 01.04.2011 services in relation to setting up of the premises were clearly covered in the inclusive part of the definition of input service squarely,which position has been accepted by the adjudicating authority and has not been disputed by the Revenue in their appeal. This position has also been accepted by the Hon ble Madras High Court in the case of Dymos India Automotive Pvt. Ltd. [2019 (365) ELT 26 (Mad.)] and by the Tribunal in the following amongst other judgements,Ruchi Malls Pvt. Ltd. [2020 (34) GSTL 426 (Tri.-Del.)]; Vamona Developers Pvt. Ltd. [2016 (42) STR 277 (Tri.-Mumbai)]; Orient Cement Ltd. [2017 (51) STR 459 (Tri.-Hyd.)]; Navratan S.G. Highway Properties P. Ltd. [2012 (28) STR 166 (Tri.-Ahmd.)]; Pipavav Shipyard Ltd. [2016 (41) STR 151 (Tri.-Ahmd.)]; Adani Port SEZ Ltd. [2016 (42) STR 1010 (Tri.-Ahmd.)].The Learned Authorized Representative of the Revenue has for disputing the eligibility to avail credit placed reliance on the circular No.98/01/2008-ST dated 04.01.2008 to contend that credit on services of construction of premises from whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Point of Taxation Rules, the disputed services deemed to be provided after that date. This contention besides being a new contention cannot be accepted on the ground that the Point of Taxation Rules, clearly record that the deeming fiction therein applies only for the purpose of the said rules. In any case, what is relevant is the completion of the services prior to 01.04.2011, as per the Board Circular No. 943/4/2011-CX dated 29.4.2011, and not the date of deemed provision in terms of the Point of Taxation Rules as has been argued by the Learned AR for the Revenue. 10. Insofar as the finding of the adjudicating authority to the effect that credit on input services such as house-keeping, man-power supply, General Insurance, etc., and on inputs such as furniture, chemicals for purifying water, electrical items, etc., would not be admissible as there is no direct nexus between the same and the output services rendered by the assessee-appellant is concerned, this finding is clearly and manifestly incorrect as there is no stipulation either in the definition of input or input service or in any other provisions of the Cenvat Credit Rules, to the effect that there has to be a dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods only 50% of the credit could be availed in theyear of receipt and the balance credit can be availed during the subsequent years, while for inputs the entirety of credit could be availed in the year of receipt . We however note that as has been fairly admitted by the assessee-appellant, that an amount of Rs.38,39,364/- out of the total amount of credit in dispute of Rs.3,25,73,700/- on capital goods pertaining to goods which have been removed as such. The said amount has rightly been reversed as provided for in Rule 3(5) of the Cenvat Credit Rules and that even though credit of such goods could have been admissible, the goods having been cleared as such, reversal in respect of the same was warranted. Insofar as the balance credit which has been reversed during investigation, appropriate relief in accordance with law would be admissible. 12. Insofar as the denial of credit for failure to produce original of the duty paying document is concerned, we note that there being no dispute regarding receipt, consumption and utilization of the goods covered by the said invoices as also there being no dispute on the fact that at the time of receipt credit had been availed only on the st ..... 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