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TMI Blog2023 (6) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... t does not constitute eligible 'input service' in terms of the definition under Rule 2 (l) of the Credit Rules, under the exclusion clause. 4. The appellant submits that the issue is no longer res-integra and has been decided in their favour by the Division Bench of this Tribunal vide Final Order no. 75645/2021 dated 07.10.2021 in Excise Appeal No. 77734 of 2018, wherein the credit was sought to be denied for the earlier period from June 2013 to November 2015. 5. The appellant submits that although the Department has preferred an appeal (Tax Appeal no. 4 of 2022) before the Hon'ble Jharkhand High Court against the aforesaid order dated 07.10.2021 passed by the Tribunal, there is no order for stay of operation of the said order till date. Further the matter has not yet been taken for admission/hearing in the said Departmental Appeal. 6. The appellant thus states that the issue relating to eligibility of credit on CHP stands in favour of the appellant by the order passed by the Hon'ble Division Bench of this Tribunal in appellant's own case and there is no order for stay as on date. 7. The Learned AR for Revenue relies on the impugned order. He further states that Revenue has pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd genuineness of critical components and capacity and other technical parameters of the equipment / systems... " From the above, it appears that the purpose of setting up of the CHP is to load the coal into the railway wagons in an automated manner after the coal is crushed into the desired size. It is not in dispute that the services used by the appellant is for modernisation of the coal loading process. The definition of input service specifically include services received by a manufacturer for modernisation of a factory. We have also perused the decision of the Tribunal in the case of Pepsico India Holdings (P) Ltd (supra) relied upon by the appellant. The Tribunal has observed that without setting up of the factory, there cannot be any manufacture and the mere fact that the words 'setting up of factory" has not been retained in the definition of input services post 01.04.2011, the same will not mean that the benefit of credit has been taken away by the legislature. The relevant portion of the decision is reproduced below:- "15. The department wants to deny them the benefit of the CENVAT credit on the ground that "services related to setting up of a factory' which were sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account. 20. Thus, the term 'manufacture' itself is very wide and includes anything incidental or ancillary to manufacture. 21. For a service to qualify as "input service' under CENVAT Credit Rules, 2004 post 2011, the service in question needs not be covered even by the very wide definition of manufacture under section 2(f) of the Central Excise Act. Any service which is used not only in manufacture but also 'in relation to' manufacture will also qualify as input service. The scope of input service is further enlarged with the expression 'whether directly or indirectly use in the definition of input service. Thus, there are: a) Actual manufacture; b) Processes incidental or ancillary to manufacture which are also manufacture; c) Activities directly in relation to manufacture (i.e., in relation to 'a' and 'b' above); d) Activities indirectly in relation to manufacture (i.e., in relation to 'a'and 'b' above); 22. All four of the above qualify as input service as per Rule 2(l) (ii) as applicable post 1.4.2011. Although setting up the factory is not manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s appreciated by Hon'ble Apex Court in Rajasthan Spinning & Weaving Mills Ltd. (supra) case, all these structural items are as good as spare parts of the capital goods as mentioned in Clause 3 of Section 2(a) of Cenvat Credit Rules, 2004 and thus are eligible inputs/ capital goods for availing credit. The final product in the present case is the sponge iron for which the kiln, burning chamber, conveyor gallery, fabrication of walkways of platform, staircases, shed, etc. are the essential machineries. As per appellant, none of these machinery can put to use unless and until the impugned structure is there to support the said machinery as the machinery cannot be held suspended in the air. Thus, these structures are not merely the structural support to these machines but very much become the integral part of these machines manufacturing the final product. The perusal of earlier Order-in-Original reflects that the Department had initially observed that, all the machines in sponge iron plant can become operational or can function only when the design and layout parameters are met. Such design and layout parameters specify the location, height, angle of inclination of the machines and al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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