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2023 (12) TMI 303 - AT - Central ExciseRecovery of CENVAT Credit - scope of input service - dredging of creek bed - HELD THAT:- The principal issue in this dispute is neither that of the appellant not having paid for the service inclusive of tax liability as recorded in the bills raised by the provider nor of such service not having been provided within the factory premises but, in fact, turns on whether the appellant was recipient of service. While ‘input service’ in rule 2(l) of CENVAT Credit Rules, 2004 is broad enough to cover activities that found even indirect use in manufacture, the primary eligibility, arising from rule 3 of CENVAT Credit Rules, 2004 accruing only to the recipient of ‘such service’, is untenable. It is common ground that the waters, which had been deepened by dredging for approach of barges, did not belong to the appellant. Nor do the waters belong to any particular owner other than the Republic of India. The administrative control over such waters is vested with the Maharashtra Maritime Board (MMB) and any improvement, or enhancement of capability, would render the Maharashtra Maritime Board (MMB) to be recipient of service irrespective of the source of payment for such service. This is an aspect that the appellant has not been able to controvert and it is on this aspect that the eligibility of CENVAT credit must rest for, otherwise, rule 3 of CENVAT Credit Rules, 2004 would be rendered superfluous. In M/S. JSW JAIGARH PORT LTD. VERSUS COMMISSIONER OF CGST, KOLHAPUR [2023 (6) TMI 239 - CESTAT MUMBAI], the issue for consideration was the entitlement for credit by the port operator that rested upon the area of the port being under the control of the appellant therein. In M/S. JSW STEEL (SALAV) LTD. AND M/S. WELSPUN MAXSTEEL LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIGAD [2022 (1) TMI 967 - CESTAT MUMBAI], the dispute pertains to the services availed for setting up of, and operation, of the jetty which was under undisputed lease to the appellant. The tax discharged on services performed on such leased property, while the waters and ‘creek bed’ were not, does conform to the secondary qualification of being the recipient of the service entitling availment of credit of tax paid on ‘taxable service’ that conform to threshold eligibility by inclusion in definition. The decision of the Tribunal in CCE, NAGPUR VERSUS ULTRATECH CEMENT LTD., [2010 (10) TMI 13 - BOMBAY HIGH COURT] arose in similar circumstances of claim by recipient of service and, hence, would not apply to the resolution of the present dispute. There are no merit in the appeal which is dismissed.
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