CESTAT | Cenvat Credit including Education Cess and SHE cess taken on R&D services entitled to be distributed; Tribunal allows appeal

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): The Coram of P.V. Subba Rao (Technical Member) and P. Dinesha (Judicial Member) allowed an appeal which filed to decide whether the appellant was entitled to distribute the Cenvat Credit including Education Cess and SHE cess taken on the Research & Development services received to their manufacturing units in terms of Rule 7 of Cenvat Credit Rules, 2004.

A show-cause notice was issued by the Revenue and the same was adjudicated by the Principal Commissioner.

The Tribunal considered the decision relied on by the counsel of the appellant, Mr S. Thirumalai in Final Order of the Tribunal Bench in No. A/30883- 30885 of 2020 in respect of the Dr Reddy’s Laboratories Ltd., wherein it had been observed as under:

“2. ………The appellant herein is a major manufacturer of bulk drugs (Active Pharmaceutical Ingredients or API) and formulations in India. Manufacture of pharmaceutical requires a lot of Research & Development in terms of product development, testing, process improvements, cost reduction and meeting the legal certification requirements of various authorities such as Drugs Controller of India and his counterparts in other countries.

  1. The appellant has created a single Integrated Product Development Organisation Unit

(IPDO) at Bachupally to undertake research and development activities of their products. It caters to the requirements of various manufacturing units of the appellant. The appellant had taken CENVAT Credit on the services used in the IPDO. Revenue is of the opinion that the IPDO not being a manufacturer of excisable goods nor provider of taxable services, no CENVAT Credit is admissible on the input services used in the IPDO. The appellant’s position is that various input services and inputs used in the IPDO are intrinsically linked to the manufacture of the final products in their manufacturing units and therefore is a direct corelation between the services used in the IPDO, which is their R&D unit and the manufacture. Therefore, they are entitled to CENVAT Credit on such services. The question before us is whether the appellant is entitled to CENVAT Credit on the input services used in the IPDO or otherwise. The appellant had taken registration as Input Service Distributor and has distributed the credit taken in their IPDO to their units. 

  1. We have considered the arguments on both sides and perused the records. Pharmaceutical industry is a specialised industry distinct from other industries. Not only is the manufacturer required to manufacture the correct drug but is also required to make it of the requisite quality and standards. Further, a manufacturer is also required to obtain the necessary clearances and certifications from the authorities before the product can be marketed. Without any of these activities, the product cannot be manufactured and sold. Therefore, for a marketable pharmaceutical product to come into existence, the certifications and quality control are absolutely essential. Further, pharmaceutical industry is one which involves a lot of research and development which distinguishes the product of the manufacturer from those of others. In fact, a large proportion of the cost of any pharmaceutical product is on account of the amounts spent on research and development both in terms of discovery of a new molecule and also in terms of developing an appropriate formulation containing various quantities of different drugs. Once a product is developed, the product has to be necessarily certified by the Drugs Controller for it to be marketable and this involves requisite paper work, clearances and obtaining the certificates without which the product cannot be marketed. We, therefore, find that as far as pharmaceutical industry is concerned, research & development is an essential part of the entire manufacturing process. Therefore, the services used in the R&D have a direct nexus with the manufacture of the final products. It is not necessary that the pharmaceutical industry has a complete R&D facility in each of its manufacturing units. In order to economise and benefit from the economies of scale, R&D units are set up as independent units for serving various manufacturing units of the manufacturer. In such a case, the services availed in the R&D units have a direct nexus to the manufacture of the products in various units. If the assessee is registered as an input service distributor, the CENVAT Credit availed on the services used in the R&D unit can be distributed to various manufacturing units. The appellant has just done that.
  2. Our view in this regard is consistent with the view taken by the Tribunal Allahabad in the case of Jubiliant Life Sciences Ltd. (supra) and upheld by the Hon’ble Apex Court. It is also consistent with the decision of this Bench in the case of Aurobindo Pharma Limited (2019- TIOL-3415- CESTAT HYDERABAD)] and CESTAT Chennai (2018-TIOL-1661-CESTATMAD).
  3. In view of the above, we find that the issue is no longer res integra and stands decided in favour of the appellant by various case laws cited above. We, therefore, find that the impugned orders are unsustainable and need to be set aside and we do so.”

The Tribunal allowed the appeal keeping in mind the findings of the Bench in the above case.[Aurobindo Pharma Ltd. v. Commr. of CT, 2020 SCC OnLine CESTAT 335, decided on 09-12-2020]


Suchita Shukla, Editorial Assistant has put this story together

Join the discussion

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.