R.K. Abichandani, J. (President)

1. The applicant seeks interim stay of the impugned order and waiver of pre-deposit of the amount of Rs. 1,08,46,100/- (rupees one crore eight lakhs forty six thousand one hundred only) and the amount of penalty of Rs. 10,000/-.

2. The applicant is a manufacturer of cement and clinker and was availing Cenvat credit of duty paid on inputs, capital goods and input services, under Rule 3 of the Cenvat Credit Rules, 2004. On scrutiny by the department, it was noticed that the appellant had availed the credit of service tax paid on certain services including the services of Custom House Agent/Shipping Agent/Port Service for export of finished goods from the ports, which could not be considered as input services as defined under Rule 2 of the said Rules. These services were received and utilized by the applicant in respect of export of finished products and they were taken and used at a place beyond the place of removal after completion of the manufacturing activity and clearance of the excisable goods from the factory gate. Even the services of Mobile/landline telephones installed in the premises of the applicant and the residential premises of the employees, services of insurance of residential colony etc. and also charges paid for power supply were, according to the Revenue, not admissible as input services.

2. According to the applicant, the services of Custom House Agent/Shipping Agent in case of export goods, would be eligible for input services because there was no restriction provided with regards to these services, that they should be used before the removal of goods. It was contended that the definition of input services was very wide and included a variety of activities necessary for running the day-to-day business of manufacture of goods. Services as provided by Customs House Agent/Shipping Agent/Port Service, were according to the applicant, activities relating to business, and were included in the definition of input services. It is also contended that the jetty was situated within the factory premises and was a constituent part of the factory premises. Even as regards the other services, such as for providing facilities to the employees like telephone services were, according to the applicant, eligible input services.

3. The learned Commissioner, by considering the definition of input services under Rule 2 of the said Rules and the material on record, came to a finding that, the Cenvat credit on outward transportation was restricted only to the place of removal and the expression "clearances of final product from the place of removal" would meant that the credit of the services used in clearances of the final product was restricted to the place of removal and not beyond. It was, therefore, held that the services of Customs House Agent/Shipping Agent and Port Service would qualify as input services only up to the place of removal from the factory. Taking note of the definition of place of removal under Section 4(3)(c) of the Central Excise Act, 1944, the Commissioner has come to the finding that a Jetty cannot be termed as a place from where the goods are sold and it is merely a place which facilitates loading of goods into the ship after their clearance from the factory. It was held that a Jetty was neither a factory nor it can be termed as a place of removal, as defined in Section 4 of the. Therefore, the services utilized for clearance of final products at the Jetty would not qualify as input services. It may recorded that this contention in context to Jetty was not pursued, at this stage, on behalf of the appellant.

4. The learned Advocate appearing for the applicant submitted that services of Customs House Agent/Shipping Agent/Port Service, which were availed by the applicant, were the services in relation to business and therefore, input service within the meaning of the inclusive part of the business of input services. He argued that the categories, which were enumerated in the inclusive part of the definition, need not have any nexus with the manufacture and clearance of the product from the factory. He submitted that the inclusive part of the definition will stand on its own and the variety of the activities, which had no relation with manufacturing and clearance activities, were included, for making them eligible input services. He pointed out that the services, such as modernization, renovation or repairs of a factory, advertisement, market research, accounting, auditing, financing, recruitment, training, which had no direct nexus with manufacture or clearance would still be input services, because, these activities are related to business. He submitted that the inclusive part of the definition should be given a wide meaning, and relied upon the decision of the Honble Supreme Court in the case of C.I.T., Andhra Pradesh v. Taj Mahal Hotel reported in , in which it was held that the word plant was given an enlarged meaning within the definition under Section 10(5) of the Income Tax Act, 1922.

5. Input service has been defined under Clause (1) of Rule 2, which reads as follows:

Input service" means any service:

(i) used by a provider of taxable service for providing an output service, or

(ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place or removal.

The definition of input service fixes the meaning of that expression and such services used by the manufacturer, are required to have a nexus with the manufacture of the final product and clearance of the final product from the place of removal. Place of removal is well defined in Section 4(3)(c) and admits no extension of its meaning to the place of shipping port. The services which are enumerated in the inclusive clause, which applies both, in the context of the provider of output services as well as the manufacture, cannot be read de hors the meaning of input service under Rule 2(1). Therefore, all the activities relating to business, which are input services used by the manufacturer in relation to the manufacture of final product and clearance of the final product from the place of removal alone would be eligible. After the final products are cleared from the place of removal, there will be no scope for subsequent use of service to be treated as input. Prima facie, therefore, services beyond the stage of manufacturing and clearance of the goods from the factory could not be input services. The Commissioner, therefore, does not appear to have committed any error in disallowing the Cenvat credit on this ground. Other items are not pressed at this stage.

6. Having regard to the facts and circumstances of the case, we, therefore, direct that there will be interim stay of the impugned order on the appellants depositing a further sum of Rs. 25 lakhs (rupees twenty five lakhs) within six weeks from today, failing which the appeal will stand dismissed. Compliance will be reported on 01.05.2007. This application is disposed off accordingly.

(Dictated and pronounced in open Court)