TMI Blog2010 (1) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... une-II, 2009 -TMI - 34433 - BOMBAY HIGH COURT, the appellant is eligible to avail the Cenvat credit of the Service tax paid on the garden maintenance services falling under “Manpower supply”. Thus, the impugned order is incorrect and liable to be set aside. The impugned order is set aside and the appeal is allowed with consequential relief, if any. - E/334/2008 - 38/2010 - Dated:- 22-1-2010 - Shri M.V. Ravindran, Member (J) REPRESENTED BY: Shri R. Raghavan, Advocate, for the Appellant. Shri M. Ravi Rajendran, SDR, for the Respondent. [Order]. - This appeal is directed against the Order-in-Appeal No. 04/2008-CE dated 22-1-2008. 2. The relevant facts that arise for consideration are that the appellant is a manufacturer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission that the factory of the appellant is under the supervision of pollution control authorities and every action with reference to increase in production capacity or diversification, needs approval of pollution control authorities. He would draw our attention to the orders dated 30-3-2002, 16-6-2003 and 25-2-2004 of Karnataka State Pollution Control Board for the submission that there is a requirement in treating the sewage and effluent within the factory premises to use the said treated water for irrigation/gardening within the factory premises without letting it out outside the factory premises. He would also submit that the appellant's factory is certified under ISO 9000 and ISO 14001 which mentions that there should be complete envi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of "Manpower supply". The Revenue is seeking to deny the said credit only on the ground that the said services cannot be considered as in put services and cannot be considered as activities related to business. It is also the Revenue's contention that the said services are not directly or indirectly connected in relation to manufacture of final product and clearance of final product. 6.1 At the outset, I find that the order of the Karnataka State Pollution Control Board (KSPCB) dated 30-3-2002 gives a consent to the appellant authorizing them to operate their industrial plant subject to the existing air pollution control and water pollution control norms as set by the authorities. Further I note that while granting consent to appellant f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order to adhere the condition laid down by the KSPCB, failing which the consent given to them would have been in jeopardy. 7.1 On this factual matrix, I find that the appellant has availed the services of garden maintenance from a person, who paid the Service tax. The service tax paid on the said services can be availed as Cenvat credit as the creation and maintenance of garden within the factory premises was mandatory requirement as per the order of the KSPCB. I find that the Hon'ble High Court of Bombay in the case of Coca Cola India Pvt, Ltd. (supra) had laid down the criteria for availing of Cenvat credit of the Service tax paid on the services. In para 39 of the said judgment, their Lordships while interpreting the definition of inp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey are associated directly or indirectly in relation to manufacture of final products and transportation of final products upto the place of removal. This would follow from the observation of the Supreme Court in Kerala State Co-operative Marketing Federation Ltd. and Ors. v. Commissioner of Income-tax -1998 (5) SCC 48, which is as under: 7. We may notice that the provision is introduced with a view to encouraging and promoting growth of co-operative sector in the economic life of the country and in pursuance of the declared policy of the Government. The correct way of reading the different heads of exemption enumerated in the section would be to treat each as a separate and distinct head of exemption. Whenever a question arises as to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that garden maintenance service has no nexus, even remotely, to manufacture or clearance of excisable goods. In other words, the above service was not used, directly or indirectly, in relation to the manufacture or clearance of excisable goods. I, therefore, concur with the lower authorities on the point. Whether repairs and maintenance of vehicles is part of the issue covered by the show-cause notice is something to be considered by the original authority 8.2 It can be noted from the above reproduced finding that the statutory requirement of maintaining any garden by the appellant therein was not brought on record, in the facts of that case. In the absence of any such requirement and in the facts and circumstances of that case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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