TMI Blog2023 (3) TMI 1435X X X X Extracts X X X X X X X X Extracts X X X X ..... it of Cenvat credit would be available, even if the assessee does not satisfy the other limbs of the definition. For the period prior to amendments made in the definition of input services, the outdoor catering services availed by the appellant for providing canteen services to their employees are input services - In view of the Circular No 943/4/2011-CX dated 29.04.2011 the CENVAT Credit availed on these two invoices cannot be denied. There are no merits in the impugned order, and same is set aside - appeal allowed. - HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) AND HON BLE DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) For the Appellant : Shri Rajesh Ostwal, Advocate with Shri Aditya Jain, Chartered Accountant For the Respondent : Shri Arendra Kumar Jha, Deputy Commissioner, Authorised Representative ORDER PER: SANJIV SRIVASTAVA These appeals as indicated in table below are directed against Order in Appeal No. US/952/RGD/2012 dated 31.12.2012 of the Commissioner (Appeals) Central Excise, Mumbai II Appeal No. Period in Dispute SCN Date Impugned Order- in-Appeal/ Dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of arguments. 4.2 Interpreting the definition of Input Services as per Rule 2 (l) of CENVAT Credit Rules, 2004 for the period prior to 01.04.2011 a larger bench of Tribunal has in case of Reliance Industries [2022 (60) G.S.T.L. 442 (Tri. - LB)] held as follows: 32. In this connection, it would be appropriate to refer to the decision of the Bombay High Court in Coca Cola India, wherein the definition of input service under Rule 2(l) of the 2004 Rules, as stood prior to its amendment made on 1-4-2011, came up for interpretation. The issue was as to whether the appellant, a manufacturer of non-alcoholic beverage bases, was eligible to avail credit of the service tax paid on advertising services, sales promotion, market research and the like service availed by the appellant. The High Court held that the expression means and includes is exhaustive and that the expression business is an integrated/continued activity and is not confined or restricted to mere manufacture of the product and, therefore, activities in relation to business can cover all activities that are related to the functioning of a business. The definition of input service was divided into five limbs/categ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption. If an assessee can satisfy any one of the limbs of the above benefit, exemption or concession, then credit of the input service would be available. This would be so even if the assessee does not satisfy other limb/limbs of the above definition. To illustrate, input services used in relation to setting up, modernization, renovation or repairs of a factory will be allowed as credit, even if they are assumed as not an activity relating to business as long as they are associated directly or indirectly in relation to manufacture of final products and transportation of final products upto the place of removal. xx xx xx 43. What follows from the above discussion is that the credit is availed on the tax paid on the input service, which is advertisement and not on the contents of the advertisement. Thus it is not necessary that the contents of the advertisement must be that of the final product manufactured by the person advertising, as long as the manufacturer can demonstrate that the advertisement services availed have an effect of or impact on the manufacture of the final product and establish the relationship between the input service and the manufacture of the final p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is actually no difference between the two judgments as the third category in Ultratech Cement covers the last three of the five categories mentioned in Coca Cola India. 35. The following two principles from the aforesaid two judgments of the Bombay High Court would be of relevance to the present dispute : (a) The definition of input service is of wide import and covers not only input services which have a nexus with the manufacture of the final product (covered by the first limb), but also other input services, which do not have such a nexus, and are covered by the other limbs of the definition. Each limb of the definition is independent and, therefore, if an assessee can satisfy any one of the limbs, the benefit of Cenvat credit would be available, even if the assessee does not satisfy the other limbs of the definition; and (b) Insofar as the first limb is concerned, the requirement of establishing a nexus between the input service and the process of manufacture is to be regarded as satisfied if the expenditure incurred for the input service forms part of the cost of production/value of the final product, on which duty of excise is levied. 4.3 Hon ble Karnatak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then the said service should have been utilized by the manufacturer directly or indirectly in or in relation to the manufacture of final products or used in relation to activities relating to business. If any one of these two tests is satisfied, then such a service falls within the definition of input service and the manufacturer is eligible to avail Cenvat credit of the service tax paid on such service. 11. It is also useful to refer to CAS-4 Standards wherein all the elements of costs which are required to be included in the costing of final product have been enumerated. It reads as under: 4.1 Cost of Production : Cost of production shall consist of material consumed, direct wages and salaries, direct expenses, works overheads, quality control cost, research and development cost, packing cost, administrative overheads relating to production. To arrive at cost of production of goods dispatched for captive consumption, adjustment for stock of work-inprocess, finished goods, recoveries for sales of scrap, wastage, etc., shall be made. 5.2 Direct wages and salaries shall include house rent allowance, overtime and incentive payments made to employees directly engaged in th ..... 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