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TMI Blog2024 (10) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner has allowed an amount of Rs.5,20,00,036/- and denied an amount of Rs.6,13,469/- as ineligible credit. With regard to irregular cenvat credit of Rs.4,11,57,104/- on input services, has allowed Rs.2,91,21,851/- as eligible credit and disallowed Rs.1,20,35,253/- as ineligible credit. The above ineligible credits were confirmed along with interest and penalty was imposed under Section 11AC(1)(c) of the Central Excise Act, 1944 read with Rule 15(2) of the CENVAT Credit Rules 2004. The department is in appeal (E/20230/2017) against the amounts allowed as eligible credit while the assessee is aggrieved on disallowance of the credit, hence in appeal (E/20163/2017) against disallowance of cenvat credit. 2. The Learned Counsel submits that the Commissioner has disallowed cenvat credit of Rs. 65,84,879/- only for the period after 01.04.2011, on the ground that the excavation work is nothing but civil work. Referring to the definition of 'input service', it is submitted that the definition 'input service' means any service 'used by a manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products up to the place o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the entire amount of ineligible credit confirmed by the Commissioner has been paid along with interest and 25% penalty as allowed by the Commissioner within 30 days from the date of the issue of the order and the details are placed on record. 2.5 Countering the appeal filed by the Department, it is submitted that the adjudicating authority has given a clear finding on the eligibility of cenvat credit on steel structures taking into consideration the definition of inputs during the relevant period. It is also submitted that the Commissioner after considering the definition of input services during the relevant period has correctly allowed the cenvat credit on erection commission and fabrication services. Hence, they do not find any substance in the Revenue's appeal as there is nothing on record to prove against the clear findings of the adjudicating authority. 3. The Authorized Representative on behalf of the Revenue submitted that the Jurisdictional Assistant Commissioner and the Range Officer have clearly stated that it is not possible to correlate invoice-wise details of materials used in the factory and the credit taken thereto. The assessee had submitted Chart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above, we uphold the denial of cenvat credit on the inputs during the relevant period in view of the revised definition of 'input' and 'capital goods' of CENVAT Credit Rules, 2004 as reproduced below: [(k) "input" means - (i) all goods used in the factory by the manufacturer of the final product; or (ii) any goods including accessories, cleared along with the final product, the value of which is included in the value of the final product and goods used for providing free warranty for final products; or (iii) all goods used for generation of electricity or steam [or pumping of water] for captive use; or (iv) all goods used for providing any [output service, or]; [(v) all capital goods which have a value upto ten thousand rupees per piece.] but excludes - (A) light diesel oil, high speed diesel oil or motor spirit, commonly known as petrol; [(B) any goods used for - (a) construction or execution of works contract of a building or a civil structure or a part thereof; or (b) laying of foundation or making of structures for support of capital goods, except for the provision of service portion in the execution of a works contract or construction service as listed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where it has been categorically mentioned as Earth Excavation Works. 4.3 Cenvat credit on Erection and Commission and Installation services, the Commissioner has denied cenvat credit only to the extent of Rs.40,30,976/-. This amount is being denied only on the ground that this relates to laying foundation or making of support structure of capital goods which is excluded under the definition of 'input services' as reproduced above with effect from 01.04.2011. Out of this amount Rs.19,65,157/- has not been disputed by the appellant. The balance amount as seen from the invoices is related to fabrication and erection of pipeline and support structure and therefore, these services also get excluded and hence, rightly denied. The only plea put forth by the appellant is that they are directly or indirectly used in the manufacture of final products. However, since the above services are specifically excluded under the definition of 'input services' they are not eligible for the cenvat credit. The Commissioner has also noted that the entire ineligible amount of cenvat credit Rs.40,30,978/- was accepted and paid by the assessee on 31.08.2015. 4.4 The invoices placed in the paper book are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l structure and hence, excluded from the purview of the definition of 'input services'. As discussed above, since these services are also excluded from the definition of the 'input services', rejection of the cenvat credit by the Commissioner is upheld. The amount of credit of Rs.1,26,48,722/- disallowed by the Commissioner has also been reversed by the appellant partly at the time of the adjudication, which has been appropriated in the order; the balance amounts have been reversed on 12.11.2016 along with the interest paid on 07.12.2016 (reversal entry No.2503 with regard to inputs and reversal entry No. 2500,2501 and 2502 with regard to input service). The 25% of the demand which works out to Rs.29,83,667/- has been also paid as penalty amount vide Challan No. 00046 and 00047 dated 07.12.2016. Since, the entire amount has been paid along with the interest and 25% penalty within 30 days of the date of the order, penalty imposed under Section 11AC cannot be sustained. 5. In view of the above, in Appeal No. E/20163/2017, the impugned order is upheld except for the cenvat credit amount meant for office furniture. 6. In Appeal No. E/20230/2017 filed by the department, they are aggri ..... 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