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TMI Blog2015 (5) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... e short facts of the present case are that M/s Mundra Port and Special Economic Zone Limited, Mundra Port, Mundra - appellant herein is inter alia engaged in providing Port Services. The appellant is registered for service tax under the taxing entries of "Port Services", "Storage and Warehousing Services" and "Cargo Handling Services". The appellant uses/consumes various input services during the course of providing output services. The appellant avails Cenvat Credit of the Service Tax paid on such input services. A show cause notice No.V.ST/AR-G.dham/ COMMR/035/2006 dated 17.4.2006 was issued wherein the appellant was asked to show cause as to why credit of the excise duty paid on the cement and steel used in the construction of new jettie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the show cause notices took place on 26.6.2007 wherein the factual background of the appellant was discussed in detail and in view of the nature of the business of the appellant, the submissions in the show cause notice replies on input and input services were reiterated. 3. The Commissioner of Central Excise, Rajkot vide common order dated 26.7.2007 in respect of both the show cause notices confirmed the demand along with interest and penalty upholding the allegations made in the show cause notices. Against which, the appellant preferred the appeal before the Tribunal. By the impugned order, to the extent cement and steel are used in the construction of jetty and port building are concerned, the Tribunal held that the same are not eligi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tput service; Explanation 1.- The light diesel oil, high speed diesel oil or motor spirit, commonly known as petrol, shall not be treated as an input for any purpose whatsoever. Explanation 2.- Input include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer; (l) "input service" means any service,- (i) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal, and includes service used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers conferred by section 37 of the Central Excise Act 1944 with effect from 7.7.2009, the date on which it was notified by the Central Government from the date of the notification. According to learned counsel for the appellant, this amended definition would apply only to the factory or manufacturer and would not apply to the service provider. According to him, either before the amendment made in the year 2009 or thereafter, the appellant was neither factory nor manufacturer and he has only constructed jetty by use of cement and steel for which he was entitled for input credit as jetty was constructed by the contractor, but the jetty is situated within the port area and the appellant is a service provider. According to the appellant, his c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the notification itself and seeks to clarify existing provision. Even, if the new provision is added then it will be new amendment and cannot be treated to be clarification of particular thing or goods and/or input and as such, the amendment could operate only prospectively. In our opinion, the view taken by the Tribunal is based on conjectures and surmises as the Larger Bench of the Tribunal used the expression that intention behind amendment was to clarify. The coverage under the input from where this intention has been gathered by the Tribunal has not been mentioned in the judgment. There is no material to support that there was any legislative intent to clarify any existing provision. For the same reason, as mentioned above, the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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