TMI Blog2012 (11) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturer of excisable goods and the manufacturing unit is located in Raigad District of Maharashtra. They also have the wind mill farm situated in Satara District of Maharashtra wherein they generate electricity. The electricity so generated is supplied to the Maharashtra State Electricity Board (MSEB) and the MSEB in turn makes available equivalent quantity of electricity supplied to their manufacturing unit at Raigad. The appellant availed certain services at their wind mill farm at Satara and took credit of the service tax paid on such services at their factory at Raigad amounting to Rs. 2,17,882/-. Accordingly, a show cause notice dated 28/02/2008 was issued to the appellant for taking CENVAT credit on the services availed at Satara in the wind mill farm on the ground that such services are not input service' for the manufacture of goods at the Raigad unit and hence they are not entitled for the same. The case was adjudicated by the jurisdictional Assistant Commissioner, who confirmed the demand of Rs. 2,17,882/- under Rule 14 of the CENVAT Credit Rules, 2004 read with Section 11A of the Central Excise Act, 1944 and also ordered for recovery of interest under Section 11AB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions. 3.1 Learned counsel further submits that for taking CENVAT credit on input service', there is no stipulation under the CENVAT Credit Rules that service should be rendered within the factory premises and relies on the following decisions: 1. Indian Rayon Industries Ltd. 2006 (4) STR 79 (T) 2. Commissioner of Central Excise vs. DNH Spinners 2009 (16) STR 418 (T) 3. L.G. Balakrishnan Bros. 2009 (13) STR 619 (T) 4. L.G. Balakrishnan Bros. 2009 (20) STR 48(T) 5. Commissioner of Central Excise vs. Ultratech Cement 6. Commissioner of Central Excise vs. Ultratech Cement 3.2 The learned counsel further submits that when there are conflicting decisions among various benches of the Tribunal then unconditional stay should be granted and relies on the following decision: 1. Binani Zinc Ltd. 1995 (77) ELT 514 (Ker.) 2. Essen Multipack 2003 (58) RLT 86 (T) 3. Tiki Tar Industries 2007 (78) RLT 233 (T) 4. Fuji Electronics 1995 (77) ELT 567 (T) 5. Sirocco Pressing Pvt. Ltd. 2002 (142) ELT 704 (T) 6. Hindustan Lever Ltd. 2007 (219) ELT 613 (T) 4. The learned AR on the other hand submits that this Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T Credit Rules, the input service' should be a service used by a manufacturer, directly or indirectly, in or in relation to the manufacture of final products. In the instant case, the service have been availed at the wind mill farm, which is situated at a long distance away from the manufacturing unit and the service so availed relates to the maintenance of wind mill equipment, security services at the wind mill farm, etc. The wind mill generates electricity which is a non-excisable item and such electricity is supplied to the State Electricity Grid and is not captively consumed. No doubt, an equal quantity of electricity is made available to the manufacturing unit at Raigad. It cannot be, therefore, said that the electricity generated at Satara has been captively consumed in the manufacture of excisable goods at the factory in Raigad. Under the CENVAT Credit Rules, CENVAT credit is not available in respect of capital goods which are installed at premises which are not part of the factory; if services are availed in respect of capital goods which themselves are not entitled for CENVAT credit, how can the services rendered in respect of such capital goods be considered as an input ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not been dealt with by the learned Member (Technical) in this order. He simply stated that the appellant's own case and the case of Endurance Technologies Pvt. Ltd. (supra) are Single Member Bench decisions, hence those decisions are not binding on this Bench which is a Division Bench. But I find, in the case of Rajhans Metals Pvt. Ltd., Rajshanti Metals Pvt. Ltd., and Ellora Times Ltd. are also the decision of the Single Member Bench of this Tribunal and same are appealed against and pending before the Hon'ble High Court of Gujarat for decision on the issue. Therefore, prima facie the appellant has made out a case for waiver of pre-deposit as balance of convenience lies in their favour. Moreover, in the case of Crompton Greaves in stay application No. E/S/2048/10 vide order No. S/964/11/EB/C-II dated 20.12.2011 wherein in the case of BDH Industries Ltd. 2008 (229) ELT 364 (Tri. LB) the Larger Bench of this Tribunal held against the appellant and the said order has been challenged by the assessee before the Hon'ble High Court of Bombay and the decision is pending. In that case this Tribunal has been granted unconditional waiver of pre-deposit. Therefore, following the precede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5) ELT 661 whereby the Tribunal has taken a contrary view and held that the service tax paid in respect of maintenance and repairs of wind energy plant situated the factory is not available as credit to the manufacturer. The same view has been taken in the case of Asian Tubes Ltd vs CCE, Ahmedabad reported in 2011 (263) ELT 707. The Revenue also relies on the decision of the Hon'ble Supreme Court in the case of Maruti Suzuki Ltd vs CCE, Delhi III 2009 (240) ELT 641(SC). The contention of the Revenue is that the Hon'ble Supreme Court in the above decision held that the credit is available in respect of the specified goods used in or in relation to the manufacturer of the final product. 5. I find that the Tribunal in the applicants' own case held in favour of the applicants. The Revenue relies other decisions where contrary view has been taken. 6. I further find that the Hon'ble Kerala High Court in the case of Binani Zinc Ltd vs Assistant Collector of Central Excise, Cochin reported in 1995 (77) ELT 514 (Ker) held that in case there are contrary decisions of the Tribunal, the assessee had made out a prima facie for waiver of dues under Section 35 of the Central Excise Act. 7 ..... 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