Karnataka High Court
Principal Commissioner Of Central Tax vs Shell India Pvt Ltd on 1 December, 2022
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
-1-
CEA.16/2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER, 2022
PRESENT
THE HON'BLE MR JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR JUSTICE T G SHIVASHANKARE GOWDA
CENTRAL EXCISE APPEAL NO.16 OF 2022
BETWEEN:
PRINCIPAL COMMISSIONER OF CENTRAL TAX
BANGALORE NORTH
NO.59, HMT BHAVAN
GROUND FLOOR, BELLARY ROAD
BANGALORE -560 032
KARNATAKA. ...APPELLANT
(BY SMT. VANITA K.R., ADVOCATE)
AND
SHELL INDIA PVT LTD.
PLOT NO.7, BANGALORE HARDWARE
PARK DEVANAHALLI, INDUSTRIAL
PARK MAHADEKODIGEHALLI
Digitally signed by BANGALORE NORTH
MALA K N
Location: HIGH KARNATAKA - 562149. ...RESPONDENT
COURT OF
KARNATAKA
(BY SRI P. B. HARISH, ADVOCATE)
THIS CEA IS FILED UNDER SECTION 35G OF THE CENTRAL
EXCISE ACT, PRAYING TO SET ASIDE THE CESTAT FINAL ORDER
NO.20845/2021 DATED 09/11/2021 VIDE ANNEXURE-A AND DECIDE
THE QUESTION OF LAW FRAMED IN THE ABOVE APPEAL AND ETC,.
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CEA.16/2022
THIS CEA COMING ON FOR ADMISSION THIS DAY,
P.S.DINESH KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the Revenue directed against the final order of CESTAT1 dated November 9, 2021 (Annexure-A) has been filed to consider following questions of law:
A. Whether the CESTAT was right in holding that the disputed input services were used for providing output services, when the term "setting up" has been specifically excluded from the definition of input service, with effect from 01.04.2011, vide Notification No.3/2011-CE (NT) dated 01.03.2011.
B. Whether CESTAT was right in not taking into cognizance the facts brought out in the Order-In-Original No.BLR-NORTH-COMM- 05-2018-19 dated 25.09.2018 and allowing credit on input services used for setting up of New Technology Centre.
1 Customs, Excise & Service Tax Appellate Tribunal -3- CEA.16/2022 C. Whether the CESTAT was right in setting aside the Order and allowing the assessee's appeal.
2. Smt.Vanitha K.R., learned Standing Counsel for the Revenue argued in support of the impugned order. She contended that post-amendment, the assessee shall not be entitled for CENVAT credit on fresh constructions.
3. Sri.P.B.Harish, learned Advocate for assessee adverting to the amendment dated April 1, 2011 submitted that:
• assessee has not claimed any CENVAT credit towards "fresh construction";
• assessee is entitled for CENVAT credit on modernization, renovation or repairs of factory premises;
• as per the definition in the amended Section, "input service" means any service used by a provider of taxable service for providing an output service.-4- CEA.16/2022
4. Admittedly, assessee has claimed CENVAT credit on following heads:
• Consulting Engineer Services • Management Consultancy Service • Manpower Recruitment and Supply Agency's service • Real Estate Consultant • Business Support Service • Erection, Commissioning and Installation Services • Technical Testing and Analysis Services • Business Auxiliary Services • Commercial Training or Coaching Service • Maintenance Charges • Security Agency's services • Management, Maintenance & Repair services • Architect Services • Technical Inspection and Certification Agency Services • Storage and Warehousing Services • Customs Agent Service • Chartered Accountant's Services • Telecommunication Services • Photography Service -5- CEA.16/2022 • Scientific & Technical Consultancy Service • House Keeping services.
5. Learned Standing Counsel for the Revenue does not dispute that assessee is entitled for CENVAT credit in respect of the expenditure made on the above heads.
6. The only contention urged by Revenue in this appeal is that, assessee is not entitled for CENVAT credit on the construction while setting up of new project viz., New Technology Centre at Bengaluru located in Devanahalli Industrial Park, Bengaluru.
7. Sri.Harish has categorically submitted that CENVAT credit on input services on any new constructions is not claimed. This aspect has been considered by the CESTAT in paragraph-5.1 in extenso.
8. Having heard the learned Standing Counsel for the CESTAT and the learned Advocate for assessee, we find no error in the findings recorded by the CESTAT at para-5.1. -6- CEA.16/2022
9. In view of the above, the following;
ORDER
(i) The appeal fails and is dismissed.
(ii) The questions of law are answered in favour of the assessee and against the Revenue.
No costs.
Sd/-
JUDGE Sd/-
JUDGE KNM List No.: 1 Sl No.: 61