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Alkraft Thermo Technologies Pvt. Ltd V/S Commissioner of GST & Central Excise Chennai North Commissionerate


Company & Directors' Information:- IN TECHNOLOGIES PRIVATE LIMITED [Active] CIN = U72900DL2010PTC210298

Company & Directors' Information:- GST PRIVATE LIMITED [Strike Off] CIN = U27104MH2002PTC136410

Company & Directors' Information:- T & T TECHNOLOGIES PRIVATE LIMITED [Active] CIN = U33112UP2001PTC026185

Company & Directors' Information:- E TECHNOLOGIES PRIVATE LIMITED [Strike Off] CIN = U72900DL2000PTC106075

Company & Directors' Information:- K-TECHNOLOGIES (INDIA) PRIVATE LIMITED [Strike Off] CIN = U72900KL2006PTC019422

Company & Directors' Information:- AT TECHNOLOGIES PRIVATE LIMITED [Active] CIN = U72900PN2007PTC130827

Company & Directors' Information:- G TECHNOLOGIES PRIVATE LIMITED [Strike Off] CIN = U29299GJ2001PTC039300

    Appeal No. E/40401/2018 (Arising out of Order-in-Appeal No. 371/2017 (CTA-I) dated 20.11.2017 passed by the Commissioner of GST & Central Excise (Appeals-I), Chennai) and Final Order No. 42013/2018

    Decided On, 13 July 2018

    At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai

    By, THE HONORABLE JUSTICE: SULEKHA BEEVI C.S.
    By, MEMBER

    For Petitioner: G. Mani, Advocate And For Respondents: K.P. Muralidharan, AC (AR)



Judgment Text


1. Brief facts are that the appellants who are engaged in manufacture of radiators and parts thereof were also availing the facility of CENVAT credit of service tax paid on various input services. During the course of audit, in the year 2012, it was noticed that the appellant had availed ineligible input service tax credit on various input services. Show cause notice was issued proposing to disallow the credit which after adjudication allowed credit on certain service. The appellant filed appeal before Commissioner (Appeals) against the disallowance of credit on various services. Vide the order impugned herein, the Commissioner (Appeals) also has disallowed credit on certain input service. Hence the appellant is now before the Tribunal.

2. On behalf of the appellant, ld. counsel Shri G. Mani submitted that the services involved are outward transportation/courier service, audit fee/rent-a-cab service, TDS entry, insurance service, housekeeping service, consultancy service, book adjustment/manpower and other services. He explained that the credit in respect of the input service shown as outward transportation service is actually received for courier service. The appellant had sent samples of medicines to the buyers abroad and had availed the courier service for this purpose. Only when the appellant sends the samples abroad, they can get purchase orders from the foreign buyers. Therefore, this is in fact a type of sales promotion/marketing service for which courier agency services were availed by the appellant. He argued that the rejection of credit alleging that these are outward transportation service is incorrect.

2.1 The authorities below have rejected the claim under the heading auditor fee. The service tax paid on charges for auditor fee has been allowed. However, the conveyance charges incurred by the appellant for the auditor on which was service tax was paid has been disallowed stating that such services (Rent-a-cab) are not eligible for credit after 1.4.2011. He submitted that such rent-a-cab service availed for bringing the auditor to the factory was highly necessary for the appellant and therefore is eligible for credit.

2.2 The appellant has availed manpower supply service for the purpose of making TDS entries and the authorities below have rejected the credit of service tax paid on such service stating that these are not having nexus with the manufacturing activity. He prayed that the same may be allowed.

2.3 Under the heading, insurance service, appellant has availed credit on goods transit insurance as well as employees insurance which is in the nature of covering the gratuity amount payable to the employees. He submitted that the exclusion clause in the definition of input services excludes only such insurance services which are availed for the employees during the journey on leave travel. That these insurance services are to cover the risk of the manufacture with regard to the goods under transit, as well as the financial liability of the appellant for payment of gratuity to the employees. That this would fall within activities relating to finances of appellant and are within the inclusive part of the definition of input service and therefore eligible for credit.

2.4 The authorities below have observed that the housekeeping service availed by the appellant would fall under manpower supply service which is incorrect. The appellants had availed cleaning services from various cleaning service agencies. This is for the purpose of keeping the premises in a hygienic and clean manner. These are actually housekeeping service and the disallowance of credit observing that these are manpower supply service is incorrect. The persons who had come from the cleaning agencies had only cleaned the premises and had not rendered any assistance or work with regard to the manufacturing activity of the appellant. That therefore this service would not fall under manpower supply service.

2.5 The consultancy service has been rightly observed by the authorities below to be legal consultancy service. However, the same has been disallowed since the appellant has not produced the documents. He submitted that the appellant has traced out the documents and would be able to furnish the same. The ld. counsel requested a further chance to produce all the documents.

2.6 Under the heading book adjustment, the authorities have rejected the service tax paid on calibration services. He submitted that manpower was recruited for doing the calibration work of the machines and these services are integrally connected with the manufacturing activity. This was erroneously stated to be book adjustment and therefore has been rejected by the authorities below. He submitted that the appellant would be able to furnish documents to show that such services were availed for calibration of the machines and requested for remand of the matter.

2.7 Under general category of other services, the authorities below have rejected the service tax credit on manpower supply agency service used for data entry. He submitted that the appellant would be able to produce such documents and requested for remand of the matter.

2.8 In respect of manpower for shivtej, he submitted that the appellant has already reversed and is not contesting the same. In respect of maintenance and repair services, he submitted that the said services were actually works contract service which were availed by the appellant for repair, renovation work of the premises and would be eligible for credit. However, the appellant have now reversed the same and is not contesting. In addition, he pleaded that the penalties imposed in respect of the said services may be set aside.

3. On behalf of Revenue, ld. AR Shri K.P. Muralidharan supported the findings in the impugned order.

3.1 With respect to outward transportation service, he submitted that the same is beyond the place of removal and therefore not eligible for credit. In respect of audit fee service, he submitted that the authorities below have allowed the credit in respect of service tax paid for charges towards auditors and have disallowed the credit only in respect of conveyance charges for the auditor. The said services are not eligible for the reason that the appellant has not produced sufficient documents to show that the vehicle used for providing conveyance is capital goods for the service provider. Thus, as per clause (B) of the definition of 'input service', the said services are not eligible for credit.

3.2 In respect of TDS entry, he submitted that the said service has no nexus with the manufacturing activity.

3.3 In respect of insurance service, he submitted that this falls within the exclusion clause under clause (C) of the definition of input service and therefore has been rightly disallowed by the authorities below.

3.4 Housekeeping services were availed by the appellant as manpower supply service and therefore not eligible for credit. The appellant has not produced any document with regard to legal consultancy and book adjustment (calibration service). Therefore, credit on these services has been rightly disallowed.

3.5 With regard to other services like manpower use for data entry, the appellant having not produced any document is not eligible for credit.

4. Heard both sides.

5. The first issue for consideration is whether the appellant is eligible for credit availed on courier service used for sending free samples to the buyers abroad. Although the said service has been shown in the show cause notice and the orders as outward transportation, the appellant has produced invoices as discussed in the adjudication order to show that these service are availed by the appellant for sending the free samples to the buyer abroad. The documents show that the services of DHL courier service were availed by the appellant for sending the samples of medicines to buyers abroad. I am convinced that these are not outward transportation service as alleged in the show cause notice or in the adjudication order. The said services are indirectly related to the manufacturing activity as only if the appellant sends the samples to foreign buyers, they would be able to procure orders from such foreign buyers. However, the said invoices were not produced before the adjudicating authority. Therefore, I deem it fit to remand the said issue to the adjudicating authority who shall verify the invoices and consider the discussions made with regard to this issue.

5.1 With regard to audit fee, it is seen that the authorities below have allowed credit in respect of service tax paid on charges paid to the auditor. The appellant is contesting the service tax paid on the conveyance charges for the auditor. However, he has not furnished any document to show that the vehicle used for conveyance of the auditor was registered in the name of the service provider. For this reason, I hold that the authorities below have rightly rejected the same.

5.2 The manpower used for TDS entry is to the tune of Rs. 1,823/-. Since the appellant has to do the work of deducting the tax at source, manpower have been used for such work (data entry), I am of the view that the disallowance of credit is unjustified and requires to be set aside, which I hereby do.

5.3 The appellant has availed credit on insurance service. It is seen that the appellant had availed goods transit insurance as well as employees insurance. Needless to say that the goods transit insurance is directly related to the manufacturing activity and therefore eligible for credit. With regard to employees insurance, which is in the nature of covering the risk of gratuity amount, I am of the view that the same would not fall within the exclusion clause. The manufacturer avails such insurance to cover the financial risk that he would have to face in case of payment of gratuity to employees and therefore is directly related to manufacture. I therefore allow the credit in respect of insurance service.

5.4 The authorities below have rejected the credit in respect of housekeeping service observing that these are manpower supply service. I have perused the invoices produced before me which shows that the appellant has availed cleaning services from various cleaning agencies. However, it is seen that the appellant has not produced the entire facts regarding this issue. I therefore remand the matter to the adjudicating authority who shall consider the eligibility of credit on housekeeping service, who shall grant the appellant an opportunity of personal hearing and to furnish details/documents with regard to this issue. I hold that the said services which are required for getting the premises clean and hygienic would be eligible for credit.

5.5 The credit in respect of consultancy services have been rejected for the reason that the appellant has not produced invoices. Since the said services are availed for legal advice/consultancy, I am of the view that the same would be eligible for credit, if the appellant produces the invoices. The said issue is also remanded to the adjudicating authority.

5.6 The ld. counsel has submitted that under the heading book adjustment, the appellant has actually availed credit of manpower supply agency service availed for calibration service of the machines. Since these are directly related to manufacturing activity, I am of the view that the said services would be eligible for credit, if the appellant produces the invoices. The said issue is also remanded to the adjudicating authority.

5.7 Under heading, other services, the appellant has availed manpower used for data entry. However, he has not produced any invoice before the adjudicating aut

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hority. Since the service is connected with accounting and falls within the inclusive part of input services, I am of the view that the said services would be eligible for credit if the appellant produces the invoices disclosing the payment of service tax. The said issue is also remanded to the adjudicating authority. 5.8 The credit in respect of manpower (shivtej) is not contested by the appellant and therefore upheld. The appellant is also not contesting the credit on works contract service used for repair and maintenance. 5.9 The ld. counsel has also argued that during the relevant period, the issue as to eligibility of rent-a-cab service as well as construction service in respect of maintenance and renovation (WCS) was under confusion being interpretational issue, the penalties may be set aside. I find that there were doubts as to whether rent-a-cab services are eligible for credit after 1.4.2011. So also there were divergent views as to whether WCS used for repair and renovation is eligible for credit. Being interpretational in nature, I set aside the penalties in respect of these services including manpower (Shivtej). 6. In the result, the impugned order is modified to the extent discussed above and the appeal is partly allowed and partly remanded in the above manner.
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