Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/CASE LAW/2015-16/2741

Credit eligibility of security services availed at residential colony for staff.

Case:-MAHINDRA & MAHINDRA LTD. VsCOMMISSIONER OF C. EX., NASIK

Citation:-2015 (39) S.T.R. 316 (Tri. - Mumbai)

Brief Facts:-The brief facts of the case are that the appellant is having a housing colony and club room attached to their manufacturing unit at Igatpuri, Nashik. They have availed credit of Service Tax paid on security services provided at the residential colony and club room, repair of mixer used in the canteen, civil work done at the colony, furniture/wooden partition done for VIP rooms and telephone lines installed at residence of the officers/club rooms during the period November, 2005 to September, 2010. A demand amounting to Rs. 7,31,472/- was issued to them which was confirmed along with interest and penalty by the original authority vide OIO 27/Addl./Adj/2011, dated 21-3-2011. Appellant filed appeal before the Commissioner (Appeals) who vide Order dated 30-6-2011 dismissed the appeal of the appellant except allowing credit of Rs. 5611/- and corresponding interest and penalty in respect of Service Tax paid on furniture/wooden partition on VIP room and repairing of mixer used in the canteen. Another show cause notice was also issued for the similar services for the period October, 2010 to March, 2011 for recovery of Rs. 4,27,335/- which was also confirmed along with interest and penalty by the Adjudicating Authority vide Order No. 395/CEX/PC/001/2011, dated 30-11-2011. The appellant filed an appeal against the said order, which was rejected by the Commissioner (Appeals) vide order dated 29-2-2012. Commissioner (Appeals) in his order upheld the order of the original authority; however, the penalty under Rule 15 was set aside. Aggrieved by the said two orders, the appellants are before Tribunal.

Appellant contentions:-The main contention of the appellant is that in view of the Hon’ble High Court judgment in Ultratech Cement Ltd.- 2010 (20) S.T.R. 577 (Bom.), they are entitled to the credit keeping in view the fact that residential colony and the club room are absolutely essential for the functioning of the factory at the relevant place. The authorised representative of the appellant further stated that they had set up the said unit in 1983 and 1989 when there were no facilities available in the area and it was absolutely necessary for them to have housing colony and club facility and in view of the Hon’ble High Court judgment in the case of Ultra-tech Cement Ltd. (supra) as also the judgment of the Hon’ble High Court of Andhra Pradesh in ITCreported in 2012-TIOL-199-HC-AP-ST = 2013 (32) S.T.R. 288 (A.P.), they are entitled to the Cenvat credit. Ld. Authorised Representative of the appellant firm further stated that in this case no penalty is imposable in view of this Tribunal’s decision in the case of Bhushan Steel- 2014-TIOL-144-CESTAT-MUM = 2014 (310) E.L.T. 918 (Tri.-Mum.) and also in view of the decision of the Tribunal in 2014-TIOL-2122-CESTAT = 2015 (37) S.T.R. 533 (Tri.-Mum.).

Respondent contention:-Ld. AR appearing on behalf of Revenue, on the other hand, stated that the case is squarely covered by the decision of Hon’ble High Court of Bombay in Manikgarh Cement- 2010 (20) S.T.R. 456 (Bom.) and appellants are therefore, not entitled to take any credit. Ld. AR also further stated that the said decision of the Hon’ble High Court is based upon the decision of the Hon’ble Supreme Court in the case of Maruti Suzuki Ltd.- 2009 (240) E.L.T. 641 (S.C.) and is by the same Bench who issued judgment in the case of Ultratech Cement Ltd.(supra) and is specific to housing colony/club.
 
Reasoning of Judgment:-Tribunal has considered the submission made by both sides.
There is no dispute that the credit has been taken in respect of services which were availed in the residential colony/club house of the appellant. Hon’ble High Court of Bombay in the case of Manikgarh Cement (supra) has observed as under :-
“8.In our opinion, establishing a residential colony for the employees and rendering taxable services in that residential colony may be a welfare activity undertaken while carrying on the business and such an expenditure may be allowable under the Income Tax Act. However, to qualify as an input service, the activity must have nexus with the business of the assessee. The expression ‘relating to business’ in Rule 2(1) of Cenvat Credit Rules, 2004 refers to activities which are integrally related to the business activity of the assessee and not welfare activities undertaken by the assessee.
9.Applying the ratio laid down by the Hon’ble Apex Court in the case of Maruti Suzuki Limited v. Commissioner of Central Excise, Delhi (supra), we hold that unless the nexus is established between the services rendered and the business carried on by the assessee, the benefit of Cenvat credit is not allowable. In the present case, in our opinion, rendering taxable services at the residential colony established by the assessee for the benefit of the employees, is not an activity integrally connected with the business of the assessee and therefore, the Tribunal was not justified in holding that the services such as repairs, maintenance and civil construction rendered at the residential colony constitutes ‘input service’ so as to claim credit of Service Tax paid on such services under Rule 2(1) of the Cenvat Credit Rules, 2004.”
Tribunal also studied the judgment of the Hon’ble High Court of Bombay in Ultratech Cement Ltd. (supra). In the said judgment in para 34, the Hon’ble High Court observed as under :-
“34.Therefore, the definition of input service read as a whole makes it clear that the said definition not only covers services, which are used directly or indirectly in or in relation to the manufacture of final product, but also includes other services, which have direct nexus or which are integrally connected with the business of manufacturing the final product. In the facts of the present case, use of the outdoor catering services is integrally connected with the business of manufacturing cement and therefore, credit of Service Tax paid on outdoor catering services would be allowable.”
A combined of the two judgments will make it clear that what is permitted is the input services which are integrally connected with the manufacturing of the final product, and residential colony for the employees and the clubs are welfare activity for the staff undertaken by the appellant while carrying the business but has no nexus with the business of the manufacturing the final product. Under these circumstances, the appeals filed by the appellant are devoid of any merits.
However, keeping in view the fact that during the period there was disputes on the issue and different authorities were taking different interpretation; for, e.g., the Hon’ble High Court of Andhra Pradesh in ITC Ltd. (supra) had taken a different view, in Tribunal’s view, this is not a fit case for imposition of penalty under Section 11AC read with Rule 15(2) of Cenvat Credit Rules. Accordingly, the said penalty was set aside.
Except for the above modification relating to penalty, the appeals are dismissed.
 
Decision:-  Appeals dismissed.

Comment:- The crux of the case is that Cenvat credit of input services permissible in respect of input services which are integrally connected with manufacturing of final product. Moreover, Residential colony for employees and clubs are welfare activity for staff and has no nexus with business of manufacturing of final product. Hence, the credit was disallowed but penalty was set aside on account of contrary decisions on the issue during the material period of time.

Prepared By:  Meet Jain

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com