Page 180 - GSTL_23rd July 2020_Vol 38_Part 4

546 GST LAW TIMES [ Vol. 38
85. In Mukand Ltd. v. Commissioner of Central Excise, Belapur [2016 (42)
S.T.R. 88 (Tri. - Mumbai)], it was held by the Hon. Tribunal that the credit on
‘gardening expenses’ is fully allowable as the same is required for maintaining
the good atmosphere in the manufacturing area and also a condition precedent
as laid down by the State Pollution Control Board, without which the appellant
cannot resort to manufacturing Activity.
86. In HCL Technologies Ltd. v. Commissioner of Central Excise, Noida
[2015 (40) S.T.R. 369 (Tri. - Del.)], it was held by the Hon. Tribunal that Garden
Maintenance Services qualify as input services.
87. In Lifelong Meditech Ltd. v. Commissioner of Central Excise and Service
Tax, Gurgaon-II [2016 (44) S.T.R. 626 (Tri. - Chan.)], it was held by the Hon. Tri-
bunal that “horticulture services are directly related to the manufacturing activi-
ty by the appellant as without maintaining the garden, the appellant cannot run
their factory. Therefore, I hold that the appellant is entitled to avail Cenvat credit
for horticulture services.”
88. In M/s. Orient Bell Ltd. v. Commissioner of Central Excise, Noida, re-
ported in 2016 SCC Online CESTAT, 7923 = 2017 (52) S.T.R. 56 (Tri. - Del.), it was
held by the Hon. Tribunal that so far as garden maintenance is concerned, the
same is input service as it is a pollution control requirement and improves the
aesthetics and overall atmosphere and thus is an expenditure in or in relation to
manufacture.
89. In Commissioner of Central Excise, Delhi-III v. Suzuki Motorcycle India
Private Limited [2017 (47) S.T.R. 85 (Tri. - Chan.)], it was held by the Hon. Tribunal
that the assessee is entitled to avail the credit of gardening service.
90. All the aforementioned arguments and case laws were presented
before the AAR, Maharashtra. Even the Department agreed to the admissibility
of such Input Tax Credit on maintenance of garden inside the factory premises in
its legal submission to AAR, Maharashtra.
91. However, AAR, Maharashtra ruled that “maintenance of garden is
not a supply that can be considered as a supply used or intended to be used in
the course of furtherance of business of the applicant which is to manufacture
Propellants and Explosives. Hence the applicant is not eligible to avail ITC of the
tax paid by them on the same. The services availed in relation to plantation and
gardening within the plant area will not qualify for Input Tax Credit”.
92. In an appeal filed by the Commissioner of Commercial Taxes and
GST, Odisha against an order of the AAR, Odisha, the Hon. AAAR, Odisha held
that availing input tax credit for services in relation to plantation and gardening
within the plant area, including mining area and the premises of other business
establishments is allowed.
93. Thus, it is our contention against the order of AAR, Maharashtra
that availment of Input Tax Credit in relation to maintenance of garden inside
the factory premises should be allowed.
94. On perusal of the above submissions made by the Appellant includ-
ing the various judicial pronouncements cited by the Appellant, wherein it was
categorically held by the Courts that Cenvat Credit in respect of the input ser-
vices used in the maintenance of the gardens in the factory premises is admissi-
ble, it is opined that ratio of these judicial pronouncements is clearly applicable
in the instant subject matter as the facts and circumstances of the instant subject

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