Custom, Excise & Service Tax Tribunal
Apotex Research Pvt. Ltd vs Commissioner Of Central Excise, ... on 16 December, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/27954/2013-SM [Arising out of Order-in-Appeal No. 429/2013 dated 30/08/2013 passed by the Commissioner of Central Excise, Bangalore] Apotex Research Pvt. Ltd. Plot No. 1, Bommasandra Industrial Area, 4th Phase, Bommasandra Industrial Estate, Jigani Link Road, Bangalore 560 099 Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax Bangalore-I Post Box No. 5400, CR Buildings, Bangalore - 560 001 Karnataka Respondent(s)
Appearance:
Shri S. Sivakumar, Advocate #1/1, 7th Main, 2nd Stage, Indiranagar, Bangalore 560 038 For the Appellant Shri Mohammed Yusuf, AR For the Respondent Date of Hearing: 15/09/2016 Date of Decision: 16/12/2016 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 21411 / 2016 Per: S.S GARG The present appeal is directed against the impugned order passed by the Commissioner (Appeals) vide order dated 30.08.2013 whereby he partially allowed the appeal and denied the cenvat credit refund on input services viz. Business Support Service, Management, Maintenance and Repair Service, Renting of Immovable Property, Security Agency Services amounting to Rs. 7,49,742/- (Rupees Seven Lakhs Forty Nine Thousand Seven Hundred and Forty Two only). The period involved in the present appeal is January 2011 to March 2011. Briefly the facts of the case are that the appellant is a 100% EOU manufacturing Bulk Pharmaceutical products. The appellant filed a refund claim for Rs. 18,19,939/- (Rupees Eighteen Lakhs Nineteen Thousand Nine Hundred and Thirty Nine only) under Rule 5 of the Cenvat Credit Rules 2004 being refund of accumulated unutilized cenvat credit towards exports during the quarter January 2011 to March 2011. The adjudicating authority rejected the claim partially to the tune of Rs. 8,76,589/- (Rupees Eight Lakhs Seventy Six Thousand Five Hundred and Eighty Nine only) vide order dated 29.03.2012. Aggrieved by the said order, appellant filed an appeal before the Commissioner (Appeals) who vide Order dated 30.08.2013, rejected the refund for four services and allowed the cenvat credit in respect of Clearing and Forwarding Agency, Rent-a-Cab Service and Telecommunications Service. Aggrieved by the said order, the appellant has filed the present appeal.
2. I have heard the learned counsel for the parties and perused the records.
3. The learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering the provisions of law and also the decision given by the higher judicial fora. He further submitted that the input services viz. Business Support Service, Management, Maintenance and Repair Service fall in the definition of input service as the same is used in relation to the business. The learned counsel took me through the definition of input service which is given in Rule 2(l) of the Cenvat Credit Rules, 2004. The Legal Services and Accounting Services are specifically mentioned in the definition and they are used by the appellant in relation to their manufacturing/business activity only. In support of his submission he relied upon the decisions in the case of Golden Tobacco Ltd. Vs. CCE, Mumbai I [2013 (30) STR 594 (Tri.-Mum.)] and also National Engineering Industries Ltd. Vs. CCE, Jaipur [2013 (30) S.T.R. 511 (Tri.-Del.)]. In view of the judgments cited supra, I am of the view that Business Support Service, Management, Maintenance and Repair Service fall in the definition of input services and appellant is entitled to refund of the same. Now coming to the second allegation on which refund has been denied is that the services of Renting of Immovable Property is used at Mumbai Office and hence not eligible. To this the learned counsel submitted that the Mumbai premises of the appellant are used for regulatory activities which are directly related to the manufacture of pharmaceutical manufacturing, which is a legal pre-requisite of the Pharma Industry. It also includes regulatory activity pertaining to review of commercial documents, change control form for commercial production by regulatory affairs, compile regulatory changes and to get approval for commercial product changes at manufacturing activity. Review and approval all commercial production, process changes through change control form by regulatory affairs. He also submitted that about 15 engineers of the appellant are working in Mumbai premises to carry out the above referred pre-manufacturing related activities and all these activities are directly in relation to their manufacturing activity and fall in the definition of input service as contained in Rule 2(l) of Cenvat Credit Rules 2004. In support of this he relied upon the decision in the case of National Engineering Industries Ltd. Vs. CCE, Jaipur (supra) wherein it has been observed that cenvat credit of service tax relating to rental of immovable property, security guard appointed at the residence of central office and cycle stand, maintenance of registered office at Kolkata and corporate office at New Delhi and telephone/courier services etc the services were not availed at Jaipur but at places other than the place of manufacture, do not carry weight in view of various decisions of the Tribunal. Further he also relied upon the decision of Jaypee Rewa Cement Plant Vs. CCE, Bhopal [2009 (7) TMI 488-CESTAT, New Delhi] and the case of Indian Rail and Industries Ltd. [2006 (8) TMI 7 CESTAT- Mumbai] wherein it has been observed that there is no such stipulation that the input services must be provided or received in the factory of manufacture. Similarly he also relied upon the decision in the case of CCE, Bangalore III Vs. T.G. Kirloskar Automotive Pvt. Ltd. in respect of Central Excise Appeal Nos. 133 and 134/2009. Therefore keeping in view the ratio of the decision cited supra, I am of the opinion that the appellant is entitled to refund of cenvat credit in respect of Renting of Immovable Property Services. The next input service on which the cenvat credit has been denied is that the Security Service is not received at Unit I but received at Unit II. The learned counsel for the appellant stated that Unit I and Unit II of the appellant are located at Plot No. 1 and 2 are having one centralized registration for providing output service right from 2009 and therefore the appellant is entitled to claim refund in respect of services received in Plot No. 2 as well. In support of his submission, appellant relied upon the following decisions:
CCE, Salem Vs. Chemplast Sanmar Ltd. 2007 (208) E.L.T. 208 (Tri.-Chennai) 3.1. The learned counsel further submitted that in the appellants own case this Tribunal vide its order dated 21.11.2014 vide Final Order No. 22070/2014 by relying upon the decision of Honble High Court of Karnataka in the case of CCE & ST, Bangalore Vs. Biocon Ltd. [2014 (9) TMI 716-Karnataka] wherein the Honble High Court observed that if the assessee owns more than one unit and all the units are situated at a place it would constitute a factory. Therefore in view of the above decision, I hold that Security Services are also fall in the definition of input service and appellant is entitled to the refund of cenvat credit. In view of the above discussion, I am of the considered opinion that the impugned order is not sustainable in law and the same is set aside with consequential relief, if any.
(Order pronounced in Open Court on 16/12/2016) (S.S GARG) JUDICIAL MEMBER iss