CENVAT Credit Greenlit for Spray Drying Plant Services

A business that has set up a spray drying plant. You've availed erection and commissioning services for the plant and claimed CENVAT credit for the service tax paid. But the authorities are questioning your claim, arguing that such services are not eligible for CENVAT credit. This was the scenario in a recent case. The court, however, ruled in favor of the business. It held that CENVAT credit can indeed be claimed for the erection and commissioning services of a spray drying plant. The court emphasized that the credit is a substantive right under Rule 3(1) of the CENVAT Credit Rules, 2004, and cannot be denied due to the nature of the service. So, if you're in a similar situation, keep this ruling in mind. It underscores your right to claim CENVAT credit, regardless of the type of service you've availed.

Court Name : CESTAT Delhi

Parties : Shivani Detergent Pvt. Ltd. Vs Commissioner 

Decision Date : 31 July 2023

Judgement ref : Excise Appeal No. 53681 of 2023-SM

FINAL ORDER NO. 50971/2023

DATE OF HEARING: 25.07.2023

DATE OF DECISION: 31.07.2023

BINU TAMTA:

This is an appeal filed by the appellant challenging the

Order-in-appeal dated 20.12.2022 passed by the Commissioner

(Appeals), Customs & CGST and Central Excise, Indore, M.P.

2. The appellant is engaged in the manufacturing of Sargam

detergent cake, Sargam detergent powder, sulphuric acid spent

sulphuric acid. The appellant was also holding service tax registration

for the purpose of discharging service tax liability under the reverse

charge mechanism and were availing the benefit of cenvat credit on

inputs, input services and capital goods under Cenvat Credit Rules,

2004, (hereinafter referred to as CCR, 2004).

3. That Show cause notice dated 31.01.2019 was issued to

the appellant for having wrongly availed the cenvat credit of

Rs.36,598/- on maintenance charges and Rs. 84,000/- in respect of

erection and commissioning services during the period 2016 to 2018.

Further, they wrongly availed cenvat credit on structures, i.e., plates,

angles and section of different sizes as capital goods which was not

permissible in terms of rule 2(a) of Cenvat Credit Rules. They had also

wrongly availed the cenvat credit of Rs. 1,187.50 towards supply of

Baffle Plate and had not paid duty on sale of scrap of packing material.

On adjudication only the allegations pertaining to wrong availment of

cenvat credit on Erection and Commissioning and supply of Baffle Plate

were maintained and other allegations were dropped by the

adjudicating authority vide order dated 09.08.2021 and in appeal the

Commissioner (Appeals) allowed the cenvat credit towards supply of

Baffle Plate. Hence the present appeal has been filed by the appellant

challenging the dis- allowing the cenvat credit towards Erection and

Commissioning services.

4. Having heard both sides and perused the records of the

case, I consider the issue as to whether the appellant is entitle to avail

the cenvat credit on the services of Erection and Commissioning of

Spray Drying Plant in terms of the definition of 'input service' as

defined under Rule 2(l) of CCR, 2004.

5. The learned Counsel for the appellant submitted that the

input service credit on the invoices of erection of ETP plant and TPH

Detergent Spray Drying Plant is squarely covered under the provisions

of Clause (ii) of rule 2 (l) of CCR, 2004 since it has direct nexus with

the manufacturing of detergent cake and powder. The revenue on the

other hand has contended that the services of erection and

commissioning of these plants fall under the exclusion clause of the

definition of input service.

6. The services provided under invoice No.

COMP/845/UI/SER-01 dated 15.06.2016 by M/s Comp Engineering and

Exports read as, "Erection of 2 TPH Detergent Spray Drying Plant with

Erection of 2 TPH Detergent Spray Drying Plant with structure at your

site". In order to appreciate as to whether the said services would fall

under the substantive clause of the definition of 'input service' or under

the exclusion clause, the definition of input service is set out

hereunder:

Rule 2 (l)

“input service” means any service,-

(i) Used by a provider of output service for providing an output

service, or

(ii) Used by a manufacturer, whether directly or indirectly, in or

in relation to the manufacture of final products and clearance

of final products from the place of removal,and includes services used in relation to modernization, renovation or repairs of a factory, premises of of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, accounting, aud8iting, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry and security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation upto the place of removal.

but excludes services –

(A) Service portion in the execution of a work contract and construction

services including service listed under clause (b) of Section 66E of the

Finance Act (hereinafter referred as specified services) in so far as they

are used for –

(a) Construction or execution of work 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 one or more of the specified

services; or

The exclusion clause (A) in sub-clause (b) talks about

laying of foundation or making of structures and does not specifically

cover the services of Erection and Commissioning. It is a settled

principal that exclusion clause has to be construed strictly and

narrowly and therefore logically exclusion has to be expressed and not

implied. It is not the case of the revenue that while rendering the

services of erection and commissioning they have to lay the foundation

or has to raise structures. Therefore, to my opinion the exclusion

clause does not apply to service of erection and commissioning and

hence it would fall under the main clause of input service since it is

directly related to the manufacturing activity of the appellant.

Secondly, the demand in the show cause notice on this account also

fails as nothing has been substantiated and as noticed by the

adjudicating authority that the show cause notice has been issued in a

very casual manner.

7. The appellant has referred to few decisions by the Tribunal

to say that exclusion clause (A) in Rule 2(l) of CCR,2004 does not

cover the service in the nature of "Erection, Commissioning and

Installation Service", Thermax Ltd., vs. Commissioner of C. Ex. &

ST, Vadodra 2020 (35) GSTL 118, Orient Cement Ltd., vs.

C.C.,EX & ST, Hyderabad 2017 (51) STR 459. In Hindustan Coca

Cola Beverages Pvt. Ltd., vs. CCE, Chennai 2017 (49) STR 419,

the view taken was that when erection and commissioning of water

treatment plant was essential, there should not be denial of cenvat

credit of service tax paid in respect of such service availed for recycling

of the water for use in manufacture. The present case is squarely

covered by the said observations and therefore the services

of Erection of 2 TPH Detergent Spray Drying Plant received by the

appellant are covered under the main clause of the definition of input

service.

8. Since the issue has been decided on merits in favour of the

appellant, the issue of limitation does not survive and hence is not

required to be considered any more.

9. I, therefore set aside the impugned order and allow the

present appeal.

10. Appeal stands, accordingly allowed.

(Order pronounced on 31st July, 2023).

(Binu Tamta)

Member (Judicial)

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CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

NEW DELHI.

PRINCIPAL BENCH - COURT NO. III

Excise Appeal No. 53681 of 2023-SM

(Arising out of order-in-appeal No. IND-EXCUS-000-APP-58-2022-23 dated

20.12.2022 passed by the Commissioner (Appeals), Customs, Central Goods &

Service Tax and Central Excise, Indore, M.P.).

M/s Shivani Detergent Pvt. Ltd., Appellant

(Unit –II), Plot No. 41, C & E Sector-II

Industrial Area, Pithampur,

Distt- Dhar, M.P. 454001.

VERSUS

Commissioner, Central Excise Respondent

Customs and Service Tax

29, Bharatpuri, Post Box No. 215

Ujjain-456003 (M.P.)

APPEARANCE:

Sh. Ankur Uppadhyay, Advocate for the appellant

Sh. Vishwa Jeet Saharan, Authorised Representative for the respondent

CORAM:

HON’BLE MS. BINU TAMTA, MEMBER (JUDICIAL)