M/s. Precision Technocrates & Marketers Versus CGST, C.C. & C.E., Jodhpur-1
Service Tax
2019 (1) TMI 1171 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 3-1-2019
Service Tax Appeal No. ST/51894/2018-ST [SM] – FINAL ORDER NO. 50036/2019
Service Tax
MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
Present for the Appellant: Mr. Ashish, CA & Mr. Rajesh, Consultant
Present for the Respondent: Mr. P. Juneja, D.R.
ORDER
PER: RACHNA GUPTA
The appellants are engaged in providing commercial or industrial construction services. During the course of audit of the appellant for the period w.e.f. October, 2009 to March, 2011, Department observed that the appellant has availed the credit of Central Excise Duty paid on various items as that of Cement, M.S. Plates, M.S. Channels etc. used for construction of factory shed, building or laying of foundation or making of structures for the support of capital goods as inputs. Department alleging the credit to have been wrongly avai
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hmedabad) has been relied upon. It is further impressed upon that the appellant has paid the tax on the gross amount without availing any abatement on the benefit of the Composition Scheme. The said circumstances otherwise entitle the appellant to avail the credit as has been disallowed by Commissioner (Appeals). S.B. Jivani vs. CCE reported in 2014 (35) STR 351 (Tri.-Admd.) has been relied upon.
4. Finally, the show cause notice is objected as being barred by time on the ground that the appellant was under the bonafide belief for explanation 2, incorporated in the definition of the input, to not to be applicable upon the appellant and as such there was no suppression of fact as is alleged. Extended period was not invokable. The order under challenge is accordingly prayed to be set aside. Appeal is prayed to be allowed.
5. Per-contra, ld. DR while justifying the order under challenge has impressed upon para 7 of the impugned order. It is submitted that Commissioner (Appeals) has reas
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ng oils, greases, cutting oils, coolants, accessories of final products cleared along with the final product, goods used as paint or as packing material, or as fuel, or for generation of electricity or steam used in or in relation to manufacture of final products or for any other purpose within the factory of production.
(ii)all goods except light diesel oil, high speed diesel oil or motor spirit, commonly known as petrol, and motor vehicles used for providing any output service.
Explanation 1. – The light diesel oil, high speed diesel oil or motor spirit, commonly known as petrol shall not be treated as an input for any purpose whatsoever.
Explanation 2. – Input includes goods used in the manufacture of capital goods which are further used in the factory of manufacture.
but shall not include cement, angles, channels, CTD or TMT bars or other items used for construction of factory shed, building or laying of foundation or making of structures for support of capital goods.
w.e
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ds except when used as parts or components in the manufacture of a final product;
(D) motor vehicles;
(E) any goods, such as food items, goods used in a guesthouse, residential colony, club or a recreation facility and clinical establishment, when such goods are used primarily for personal use or consumption of any employee; and
(F) any goods which have no relationship whatsoever with the manufacture of a final product.
7. The plain reading of the amended explanation makes it clear that the opening line for Explanation 2 is about the input including goods as are used in the manufacture of the capital goods used in the factory of the manufacturer. It becomes clear that the explanation is exclusively in respect of the manufacture only, that too when it is used for construction of factory shed, building or laying of foundation or making of structure etc. The use of word factory shed further clarifies that the explanation is exclusively for the manufacturer and not for the service
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