9911796707
TMI Blog2023 (6) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... ff Act, 1985. During the course of audit by the A.G. Audit, it came to notice that during the period April 2015 to March, 2017, the appellant have wrongly availed Cenvat credit amounting to Rs.3,31,954/- (Rs.2,75,034/- on ineligible input services such as Outdoor Catering service, Membership of Club, General Insurance services, Maintenance of ETP, input service credit related to other units etc. and Rs.56,920/- on the basis of ISD invoice related to the period from September 2013 to February, 2014 i.e. prior to the Credit Rules, 2004 (hereinafter referred to as 'the Rules also). 2. Show cause Notice was issued to the appellant proposing therein recovery of wrongly availed credit amounting to Rs.3,31,954/- under Rule 14 of the Rules rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed upon that the credit is very much eligible as services were used for business purpose. It is further mentioned that extended period cannot be invoked since there is no malafide intention nor any suppression of facts. The penalties also cannot be levied in the present case for the same reason and for the reason that it is a case of interpretation. Order under challenge is prayed to be set aside and appeal is prayed to be allowed. 5. Learned Departmental Representative (D.R.), on the other hand submitted that order has been passed after considering the definition of input services and conditions for allowing CENVAT Credit. Time limit have also been prescribed under the statute. There is no infirmity in order under challenge. Appeal is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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], in so far as they relate to a motor vehicle which is not a capital goods; or [(BA) service of general insurance business, servicing, repair and maintenance, in so far as they relate to a motor vehicle which is not a capital goods, except when used by - (a) a manufacturer of a motor vehicle in respect of a motor vehicle manufactured by such person; or (b) an insurance company in respect of a motor vehicle insured or reinsured by such person; or] (C) such as those provided in relation to outdoor catering, beauty treatme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll goods "used in or in relation to the manufacture" of final products qualify as "input". This presupposes that the element of "manufacture" must be present. Yet again considering the inclusive part of the definition of "input", it was held as follows: All these considerations become relevant only when they are read with the expression "used in or in relation to the manufacture of final product" in the substantive/specific part of the definition. In each case it has to be established that inputs mentioned in the inclusive part is "used in or in relation to the manufacture of final product". It is the functional utility of the said item which would constitute the relevant consideration. Unless and until the said input is used in or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment plant" was held to be indirectly relevant for the manufacture of the Final Product. The demand of Rs.1,17,720/- on this ground was set aside by Commissioner (Appeals) after following the decision of Hon'ble Supreme Court in the case of Indian Farmers Fertilizer Corporative Ltd. vs. CCE, Ahmedabad reported as 1996 (86) ELT 177 (S.C.). Thus the only issue remains is as to whether the restaurant service /Membership of Club Service, General Insurance Service, FICCI Quality Awards, coating of floor, AC Service Charges can be called as the input services. From the above discussion it is clear that anything which is used in or in relation to the manufacture of final product has to be qualified as input service. All the above services since w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o motor vehicle. Hence, are not specifically covered under the exclusion. The services of Membership of Club, Health Services also are not for the employees on vocation. Thus, are not primarily for personal use or consumption of any employee. As such, the plea of exclusion of the services from the definition of input is held to be incorrect. 9. Coming to the issue of invocation of extended period, though the Adjudicating Authority has reflected the opinion that in the era of self assessment, it was the duty of the appellant to correctly avail the Cenvat Credit and to comply with the provisions of law, Commissioner (Appeals) has held that since the appellant has failed in that duty the extended period has rightly been invoked. But I am of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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