TMI Blog2016 (1) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... ted:- 26-11-2015 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) For the Petitioner ; Shri A. Hidayutullah Sr. Advocate With Shri Makrand Joshi, Advocate For the Respondent : Shri Ajay Kumar, Jt. Commissioner (AR) ORDER Per: M.V. Ravindran This appeal is filed against Order-in-Original No. 05/COMMR (KAP/LTU/2009 dated 28/04/2009. 2. The relevant facts that arise for consideration are appellants have setup a windmill farm at Satara. The electricity generated in this windmill farm are fed into grid of Maharastra State, electricity board for supply and distribution, in return appellant were allowed draw equivalent units for consumption of electricity, at their manufacturing plant, where excisable goods are manufactured and cleared on payment of duty. The appellant gave maintenance and repair services of windmill farm, to one of the service providers who charged service tax on the services rendered. The appellant took CENVAT credit of such service tax paid. Revenue authorities are of the view that the credit so availed is incorrect and needs to be reversed. Show cause notices were issued for the demand of such CENVAT credit a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MSEB grid and is eligible to draw a specific quantum of electricity from the grid based upon some formula as agreed between appellant and MSEB. It is also undisputed that the final product manufactured by appellant is liable to duty and the windmill farm/station is erreeted by appellant. There is also no dispute that services for maintenance and repairs are under taken by a service provider who discharged the tax liability. 8. The entire findings of the adjudicating authority is on the ground that the provisions of rule 2 (l) of the CENVAT credit rules which defines the input services, does not cover the activity as undertaken by the appellant s service provider. We find that the proposition in order-in-original is incorrect as Hon ble High Court of Bombay had considered self same issue in the case of Endurance Technology Pvt. Ltd. (supra). Respectfully we reproduce the entire judgment. Both these appeals can be disposed of by this common judgment as the facts and controversies between the parties are similar. 2] The appellant is challenging judgment and order passed by Central Excise Service Tax Appellate Tribunal [CESTAT for short]. The substantial questions that ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants, accessories of the final products cleared along with the final product goods used as paint, or as packing material, or as fuel, or for generation 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 include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer; 2(B) (l) input service means any service - (i) used by a provider of taxable service for providing an output service, or (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal, and includes services used in relation to setting up, modernization, renovation or repairs of a factory, premises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urer or in the premises of the provider of output service. [Provided that in respect of final products, namely, articles of jewellery falling under heading 7113 of the First Schedule to the Excise Tariff Act, the CENVAT credit of duty paid on inputs may be taken immediately on receipt of such inputs in the registered premises of the person who get such final products manufactured on his behalf, on job work basis, subject to the condition that the inputs are used in the manufacture of such final product by the job worker.] Rule 4(7) - The CENVAT credit in respect of input service shall be allowed, on or after the day which payment is made of the value of input service and the service tax paid or payable as is indicated in invoice, bill or, as the case may be, challan referred to in rule 9. 5] On perusal of these Rules, it becomes clear that the management, maintenance and repair of windmills installed by the respondents is input service as defined by clause l of Rule 2. Rule 3 and 4 provide that any input or capital goods received in the factory or any input service received by manufacture of final product would be susceptible to CENVAT credit. Rule does not say th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services in relation to inputs viz. for the procurement of inputs and for the inward transportation of inputs were intended to be brought within the purview of Rule 2 (l). Rule 2 (l) must be read in its entirety. The Tribunal has placed an interpretation which runs contrary to the plain and literal meaning of the works used in Rule 2 (l). Moreover as we have noted earlier, whereas Rule 3(l) allows a manufacturer of final products to take credit of excise duty and Service Tax among others paid on any input or capital goods received in the factory of manufacturer of the final product, insofar as any input service is concerned, the only stipulation is that it should be received by the manufacturer of the final product. This must be read with the broad and comprehensive meaning of the expression 'input service' in Rule 2(l). The input services in the present case were used by the appellant whether directly or indirectly, in or in relation to the manufacture of final products. The appellant, it is undisputed, manufactures dutiable final products and the storage and use of ammonia is an intrinsic part of that process. 6] In view of this discussion, we have no hesitation to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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