Custom, Excise & Service Tax Tribunal
Mumbai West vs Tech Mahindra Business Services Ltd on 6 July, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL, WEST ZONAL BENCH AT
MUMBAI
Appeal No. ST/86605/2018
(Arising out of Order-in-Appeal No. NA/CGST A-III/MUM/246-
263/17-18 dated 29.11.2017 passed by Commissioner of CGST
& CX (Appeals-III), Mumbai)
Commissioner of CGST, Appellant
Mumbai West
Vs.
Respondent
Tech Mahindra Business Services Ltd.
Appearance:
Shri M.K. Sarangi, Joint. Commr (AR) for appellant Ms. Puloma Dalal, C.A. for respondent CORAM:
Hon'ble Mr. S.K. Mohanty, Member (Judicial) Date of Hearing & Decision : 06.07.2018 FINAL ORDER NO...A/86963/2018 Per: S.K. Mohanty Revenue is in appeal against the impugned order dated 29.11.2017 passed by the Commissioner of CGST and Central Excise (Appeals-III), Mumbai. Revenue was assailed the impugned order on the ground that the learned Commissioner (Appeals) has wrongly interpreted the provisions of Rule 2(l) of the Cenvat Credit Rules, 2004, in allowing the Cenvat benefit in respect of the taxable services viz. 'Outdoor Catering Services' and 'Works Contract Service'. Revenue contended that under 2 Appeal No.ST/86605/18 the amended definition of input service with effect from 01.04.2011, such disputed services are falling under the exclusion category and as such, Cenvat benefit on those services cannot be extended to the assessee.
2. Learned D.R. appearing for Revenue reiterates the submissions made in the statements of facts / grounds of appeal filed by Revenue. He also relied on the Larger Bench decision in the case of M/s Wipro Ltd. vs CCE, Bangalore - 2018 (4) TMI 149 - CESTAT-Bangalore to state that the CENVAT benefit in respect of 'outdoor catering service' should not be available in terms of exclusion clause provided in the definition of input service.
3. On the other hand, learned Consultant appearing for the respondent submits that the services received by the respondent from the service providers were in relation to works contract services and accordingly, the learned Commissioner (Appeals) has rightly allowed the Cenvat benefit of works contract service to the respondent. In respect of works contract service, her contention is that the services provided by the service providers are not in relation to construction or execution of works contract of the building or the civil structure or part thereof. In this context, learned Consultant has placed reliance on some of the invoices issued by the service providers viz M/s 3 Appeal No.ST/86605/18 Hewlett Packard Enterprise India Pvt. Ltd, Power Control Services, ATA projects & Engineering Services etc.
4. Heard both sides and perused the case records.
5. The earlier definition of input service was substituted by Notification No. 3/2011-CE (N.T.), dated 01.03.2011 with effect from 01.04.2011. The effect of the amendment of the said definition is that certain excluded services were brought into such definition, on which Cenvat benefits are not available to the assessee. The excluded category under the said definition inter alia, included the service portion in the exclusion of the works contract, used for construction are exclusion of works contract of a building or a civil structure or a part thereof.
6. Considering the provisions of the amended definition of the input service, the Larger Bench of this Tribunal in the case of Wipro Ltd. (supra) has held that since outdoor catering service is falling under the exclusion clause of such definition, CENVAT credit should not be available to the assessee. Since the issue regarding availment of CENVAT credit on outdoor catering service is no more res integra in view of the decision of the Larger Bench of this Tribunal, I do not find any merits in the impugned order, so far as it allowed the Cenvat benefit of outdoor catering service in favour of the respondent. Therefore, the impugned order in allowing the Cenvat benefit on outdoor 4 Appeal No.ST/86605/18 catering service is set aside and the appeal is allowed in favour of Revenue.
7. On perusal of some of the invoices submitted by the learned Consultant for assessee, I find that though the services are in the nature of works contract, but were not related to construction of building or civil structure or laying of foundation etc. Since the nature of the activities provided by the service providers to the respondent as per the contract and as indicated in the invoices have not been properly scrutinized by the authorities below, I am of the view that the matter should go back to the original authority for proper verification of the invoices / contract to ascertain whether, the works contract services provided by the service provider to the respondent are confirming to exclusion category of service provided under the definition of input service. Therefore, with regard to works contract service, I remand the matter to the original authority for passing of fresh adjudication order in line with the observation recorded above.
8. The appeal is disposed of in above terms.
(Order dictated in Court) (S.K. Mohanty) Member (Judicial) nsk