TMI Blog2013 (7) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... view that the final product is electricity which is exempt and therefore, credit is not admissible. Now the law is well settled that Cenvat credit used on inputs/capital goods used in power plant set up by the manufacturer is admissible if the final product is dutiable and therefore, in this case also the Cenvat credit of input services for overhauling of DG set is admissible.” Also in the case of Coca Cola India Pvt. Ltd. vs. C.C.E., Pune II – [2009 (8) TMI 50 - BOMBAY HIGH COURT] held that any such service used in relation to manufacturing activity and relating to business are required to be held as cenvatable service. Removal of coal fly ash is one of the necessity for running of the captive power plant. Without such removal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for providing of output service. Accordingly, a show cause notice dated 18.3.2009 was issued to the appellant for recovery of wrongly taken cenvat credit amounting to Rs.46,265/- and for imposition of penalty. After considering the submissions of the appellant, the adjudicating authority disallowed the cenvat credit amounting to Rs.46265/- and ordered recovery of the same in terms of Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11A(1) of the Central Excise Act, 1944. A penalty of Rs.46265/- was also imposed under Rule 15(2) of the Cenvat Credit Rules, 2004. 2. Being aggrieved with the said order, the appellant filed an appeal before Commissioner (Appeals) and specifically contended as under: i) That they have Captive P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise, Allahabad reported in 2008 (12) S.T.R. 337(Tri.- Del) (ii) That further and without prejudice to above a perusal of Rule 2(l) ibid would show that, inter alia, services used in relation to activities relating to business are to be treated as input services. In this connection it is submitted that a perusal of submissions made in para (a) above would show that the process of generation of power has a direct connection with the business of appellant. It is therefore submitted that such activity is very well covered under the definition of Input service as activities relating to the business. Thus the availment of the aforesaid credit may please be held as correctly availed in terms of Rule 2(l) of the CENVAT Credit Rules, 2004. In thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rea is an essential element for invocation of Section 11 A of the Act. In recent decision in the case of UNION OF INDIA vs. RAJASTHAN UDYOG LIMITED reported in 2008 (222) ELT 366 (RAJ) the HON'BLE RAJASTHAN HIGH COURT has held that Mens-rea is essential for invocation of Section 11 AC. In the case of CCE, MUMBAI vs. DAMNET CHEMICALS PVT. LTD. reported 2007 (216) ELT 3 (S.C.) it has been observed by the Hon'ble Apex Court that suppression or mis-statement must be willful for invoking Section 11A. The above view has also been propounded in the case of ANAND NISHIKAWA COMPANY LIMITED v/s COMMISSIONER OF CENTRAL EXCISE, MEERUT reported in 2005 (188) ELT 149 (SC). In a very recent decision relating to service tax matters, it has been held by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present appeal is as to whether the services obtained by the appellant for removal of coal fly ash from the captive power plant which is used for generation of power, which in turn, is captively consumed for manufacture of excisable goods, can be held to be an eligible cenvatable input service. As is seen from the submission of the appellant reproduced above, the removal of coal fly ash from captive power plant is a necessity and without such removal, the captive power plant cannot work. As such, removal of coal fly ash is admittedly connected with the production of power, which in turn, has nexus with the manufacturing of the appellant final product. Revenue s objection is that since the coal fly ash is non-excisable item, removal of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be held as cenvatable service. To the same effect is another decision of the Hon ble Bombay High Court in the case of C.C.E. Nagpur vs. Ulratech Cement Limited and Another -2010 TIOL 745 HC- Mum ST laying down that a necessity requisite for production of final product or relatable to any business activity of the assessee has nexus with the assessee s final activities to be held as cenvatable service. 7. By applying the ratio of the above decision to the facts of the present case, I am of the view that removal of coal fly ash is one of the necessity for running of the captive power plant. Without such removal of the coal fly ash from the captive power plant, the same cannot operate and run, in which case, the power won t be generated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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