TMI Blog2018 (7) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is held that the order under challenge has no infirmity - appeal dismissed - decided against appellant. - Appeal No. E/53954/2014 – EX(DB) - A/52256/2018-EX[DB] - Dated:- 14-6-2018 - Mr. V. Padmanabhan, Member (Technical) And Ms. Rachna Gupta, Member (Judicial) Represented by Shri Rupender Singh, Advocate for the appellant. Represented by Shri M.R. Sharma, D.R. for the respondent. ORDER Per Rachna Gupta: Present is an appeal being aggrieved of Order-in-Original No. 14/COMMR/CEX/BPL-II/2014 dated 25.04.2014, vide which the demand of Cenvat Credit for an amount of ₹ 2,14,98,946/- has been conformed. In addition, a penalty of equal amount under Central Excise Act, 1944 has been imposed. The relevant fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s raised and the equipment was supplied and installed. However, where the equipments are procured by the contractor, he simply placed a supply order like a trader. Though, the supplier raised invoices on contractor, but simultaneously showing the Appellant as a consignee the contractor has also raised commercial invoices on the Appellant. It is impressed upon that the Cenvat Credit of excise duty has been availed by the Appellant only on the capital goods / inputs which were received directly in their factory and were subsequently installed by the contractors. The Commissioner has failed to appreciate the same. The appeal is, accordingly, prayed to be allowed. 3. While rebutting these arguments, it is submitted that apparently and admitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and installation of the coal fired boiler / STG Power Plant by the contractor in the premises of the Appellant. Thus, until and unless the final product, as asked to be erected, is finally erected / commissioned / installed, and is handed over by the contractor to the Appellant, the ownership thereof cannot be of the Appellant, but will be of the contractor. It is the manufacturer of final product who is allowed to take Cenvat Credit on the inputs and capital goods utilized for the manufacture of the final products. Manufacturer here is contractor and the final product is coal fired boiler / STG Power Plant. Till this final product comes into existence, the right to avail Cenvat Credit on all inputs / capital goods remains with the contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Cenvat Credit Rules, 2004. From the definition of Work Service Contract as enshrined under Sub-clause ZZZZA of Section 65(105) of Finance Act, 1994, it includes the sale value of the goods as well as the value of the service provider. Hence, once the option of paying the duty on the gross amount of work on contract has been exercised by the contractor disentitling him to avail the Cenvat Credit as per Cenvat Credit Rules, 2004, the same cannot be availed by the main party / the Appellant herein. 5. Though, the Appellant has taken a stand that the goods on which he had claimed Cenvat Credit were the capital goods and not a part of inputs for the Work Service Contract. But, as already held above that capital goods and the inputs are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant and authorities relied upon by him are held not applicable to the present case. Otherwise also, the High Court of Punjab and Haryana in Pepsi Foods Ltd. case 2010 (254) E.L.T. 284 (P H) has held that the ownership of the goods cannot be a relevant criteria for allowing Cenvat Credit. Also, in the case Bannari Amman Sugars Ltd. vs. CCE, Mysore, 2010 (250) E.L.T. 326 the High Court of Karnataka has held that even if the capital goods become immovable after installation / commissioning, again will not be the criteria for the purposes of Cenvat Credit. Finally, keeping in view that the benefits which cannot be availed directly, cannot be allowed to be availed indirectly, it is held that the order under challenge has no infirmi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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