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Mundra Ports And Special Economic Zone Limited Versus Commissioner of Central Excise & Customs

2015 (5) TMI 663 - GUJARAT HIGH COURT

Denial of CENVAT Credit - cement and steel - Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in rejecting the claim of the assessee in light of the provisions of Rule 2(k) of the Cenvat Credit Rules, 2004 - Held that:- jetty was constructed and input credit was claimed on cement and steel. The definition of Rule 2(k) was applicable and Explanation 2 did not provide that cement and steel would not be eligible for input credit. - The appellant is neithe .....

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ed for input credit and the decision of the Division Bench of the Andhra Pradesh High Court [2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT] squarely applies to the facts of the case - Decided in favour of assessee. - Tax Appeal No. 15 of 2009 - Dated:- 29-4-2015 - Vijay Manohar Sahai, ACJ And R P Dholaria,JJ. For the Petitioner : Mr Hardik P Modh, Adv. For the Respondent : Mr Y N Ravani, Adv. JUDGMENT (Per : Honourable The Acting Chief Justice Mr. Vijay Manohar Sahai) 1. This Tax Appeal filed und .....

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es", "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 ne .....

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as issued wherein the appellant was asked to show cause as to why credit of (a) excise duty paid on the cement and steel used in the construction of new jetties and other commercial buildings should not be denied to them; (b) excise duty paid on air conditioners installed in the premises of the appellant and used by the electrical department should not be denied to them; and (c) service tax paid on various services such as CHA Fees, Surveyors fees, Rent-a-cab operator, bank charges, labour charg .....

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al hearing in respect of both 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 allegati .....

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09 on the following substantial question of law. "Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in rejecting the claim of the assessee in light of the provisions of Rule 2(k) of the Cenvat Credit Rules, 2004?" 5. We have heard Mr.Hardik Modh, learned counsel for the appellant and Mr.Y.N.Ravani, learned counsel for the respondent. 6. Before deciding the question, we deem it appropriate to extract Rule 2(k) and 2(l) of the Cenvat Credit Rule .....

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ration of electricity or steam used in or in relation to manufacture of final products or for any other purpose, within the factory of production; (ii) all goods, except light diesel oil, high speed diesel oil, motor spirit, commonly known as petrol and motor vehicles, used for providing any output 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 inclu .....

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to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security, inward transportation of inputs or capital goods and outward transportation upto the place of removal." 7. It is not disputed that jetty was constructed and inpu .....

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. We need not go into this question as to whether the appellant is a factory or manufacturer or service provider in view of the fact that it is not disputed by Mr.Y.N.Ravani, learned counsel appearing for the revenue in this Tax Appeal that the appellant provides service on port for which he is getting jetty constructed through the contractor and the appellant has claimed input credit on cement and steel. The cement and steel were not included in Explanation 2 from 2004 upto March 2006. The Cenv .....

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as 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 case is squarely covered by the judgment of the Division Bench of the Andhra Pradesh High Court in Commissioner of Central Excise, Visakhapatnam-II Vs Sai Sahmita Storages (P) Limited, 2011(270) E .....

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and the decision of the Division Bench of the Andhra Pradesh High Court squarely applies to the facts of the case and answered the question on which the appeal has been admitted. 8. Mr.Y.N.Ravani, learned counsel for the revenue has placed reliance on the decision of the Larger Bench of the Tribunal in Vandana Global Limited Vs Commissioner of Central Excise, Raipur, 2010 (253) E.L.T. 440. We have carefully gone through the decision of the Larger Bench of the Tribunal. We do not find that amend .....

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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 provis .....

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