Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise And ... vs M/S. Bloom Energy India Pvt. Ltd on 19 December, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/27171/2013-SM [Arising out of Order-in-Appeal No. 134-137/2013 dated 09/04/2013 passed by Commissioner of Central Excise , BANGALORE-II( Appeal).] Commissioner of Central Excise And Service Tax BANGALORE-III PB.NO.5400, QUEENS ROAD, CENTRAL REVENUES BUILDING, BANGALORE 560 001. KARNATAKA Appellant(s) Versus M/s. Bloom Energy India Pvt. Ltd 144-145/17, 4th Main Road, Industrial Town (kaigarakanagar), Rajajinagar, BANGALORE - 560044 KARNATAKA Respondent(s)
Appearance:
Dr. Ezhilmathi, AR For the Respondent Smt. Rukmani Menon, Advocate Date of Hearing: 19/12/2016 Date of Decision: 19/12/2016 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 21429 / 2016 Per : S.S GARG The present appeal has been filed by the Revenue against the impugned order dated 9.4.2013 passed by the Commissioner (A) wherein the Commissioner (A) has allowed the refund of CENVAT credit under Rule 5 of CENVAT Credit Rules (CCR), 2004 on various input services.
2. Briefly the facts of the case are that the assessee is a manufacturer and exporter of converters, module voltage cards, thermo couple cards falling under Chapter 85 of First Schedule of CETA, 1985. The assessee filed a refund claim for Rs.18,94,168/- under Rule 5 of CCR, 2004 for the period January 2009 to December 2009 towards refund of unutilized credit availed during January 2009 to December 2009. The Original authority vide order dated 29.6.2010 disallowed the refund claim on the ground that there was no conclusive proof that input and input services have been used in or in relation to the manufacture of final products cleared for export. Aggrieved by the said order, the appellant filed appeal before the Commissioner (A) and the Commissioner (A) vide order dated 9.4.2013 allowed the appeal filed by the assessee. Aggrieved by the said order, the Revenue has filed the present appeal in respect of two input services i.e., rental charges and manpower charges as they are not used in or in relation to the manufacture of final product which were exported.
3. Heard both the parties and perused the records.
4. Learned AR for the Revenue submitted that the impugned order is not sustainable in law as far as these two services are concerned. She further submitted that in the case of renting of immovable property, the premises in itself does not result in emergence of any manufactured product. The premises cannot be used in or in relation to the manufacture of final products, by any reasoning. She further submitted that renting of immovable property does not constitute an input service in or in relation to the manufacture of final product. She further submitted that the other input services i.e., manpower service has also been allowed wrongly by the learned Commissioner (A). The manpower recruitment or supply agency service includes only the contract workers who carry out sundry jobs like cleaning, housekeeping and other similar activities which does not have any nexus with the production activities by the factory.
5. On the other hand, the learned counsel for the respondent-assessee submitted that the issue involved in the present case is no more res integra and has been held in favour of the assessee in the following decisions:
(i) C. Cubed Solutions Pvt. Ltd. vs. CCE, Bangalore: 2013 (29) STR 385
(ii) Delphi Automotive Systems Pvt. Ltd. vs. CST, Bangalore: 2015 (37) STR 522 (Tri.-Bang.)
(iii) Alliance Global Services IT (I) P. Ltd. vs. CCE, Hyderabad-II: 2016 (42) STR 438 (Tri.-Hyd.)
6. After considering the submissions of both the parties and perusal of the records, I am of the considered opinion that there is no infirmity in the impugned order and the issue is squarely covered in favour of the assessee in the decisions cited supra. Therefore, I do not find any merit in the Departments appeal and the same is dismissed.
(Operative portion of the Order was pronounced in Open Court on 19/12/2016.) S.S GARG JUDICIAL MEMBER rv 4