TMI Blog2023 (6) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Division Bench in favour of the appellant, it is found that the issue is no more res-integra and the appeal is allowed. - Excise Appeal No. 75688 of 2019 - FINAL ORDER NO.75551/2023 - Dated:- 5-6-2023 - MR. ANIL CHOUDHURY, MEMBER (JUDICIAL) Mr. Rajeev Agarwal, Advocate for the Appellant Mr. S. Mukhopadhyay, Authorized Representative for the Respondent ORDER The issue involved in this appeal is whether Cenvat Credit have been rightly disallowed which have been received for construction of Coal Handling plant (CHP) during the period December 2015 to October 2016 for Rs.11,25,283/-. 2. The appellant is a PSU and a 100% subsidiary of Coal India Limited, engaged in the production of coal on which central excise duty has been paid during the period in dispute. 3. The appellant has availed CENVAT Credit of central Excise on inputs and service tax paid on input services, received in connection with the construction and setting up of Coal Handling Plant (CHP) incl. Silo facilities, as its coal mines. The authorities have denied the aforesaid credit on the ground that the input services received by the appellant does not constitute eligible input servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also been provided with suitable fire-fighting automatic sampling arrangement and communication facilities. This tender document is for construction of Coal Handling on turnkey basis. The scope of this tender broadly includes approach road and construction of receiving arrangement and crushing of ROM coal, storage of crushed coal in a self flowing above ground bunker, rapid loading system, dust suppression and extraction, fire fighting, automatic coal sampling, etc. The plan showing the location of the CHP is given on the drawing bearing no In case of any construction amongst these parts/sections of the Bidding Documents, the owner should be contracted for clarification. Also where there are discrepancies in the text and drawings, the data given in the text is to be followed. All the equipment and facilities are to be supplied by the successful bidder within the estimated time period. All equipment / system shall be designed, fabricated and selected as per relevant necessary international standards and up to date engineering practices and necessary inspections / test certificates shall be submitted alongwith equipment supply to certify the quality and genuineness of critical co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In these rules, unless the context otherwise requires, (a) (b) . (l) (2) The words and expressions used in these rules and not defined but defined in the Excise Act shall have the meaning respectively assigned to them in the Excise Act. 19. Since the term manufacture is not defined in the Rules, the definition under the Central Excise Act, 1944 must be considered. Section 2(f) of the Central Excise Act defines manufacture as follows: 2(f) manufacture includes any process i) incidental or ancillary to the completion of a manufactured product; ii) which is specified in relation to any goods in the Section or Chapter notes of the Fourth Schedule as amounting to manufacture; or iii) which, in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer; the word manufacturer shall be construed accordingly and shall include not only a person who employs hired labour in the production or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le for credit. The Ld. Commissioner has allowed credit on certain invoices assuming the same to be pure services and disallowed the credit on remaining portion by considering the same to be in the nature of civil construction. We find that this Tribunal has been consistently applying the user test to decide the credit eligibility as laid down by the Hon ble Supreme Court. The Tribunal in B S Sponge Pvt Ltd vs. CCE, Raipur (Final Order no. 50231/2019 dated 08.02.2019) while considering the user test principle as laid down by the Supreme Court observed as follows:- 5. After hearing both the parties and keeping in view the various Orders at each stage of this litigation and the case law as relied upon by the appellant, I am of the opinion that the issue has been dealt by various adjudicating authorities and it has now been clearly settled that structures like Ms angle, Ms channels, Ms joists, chequered plates or similar steel structures used in fabrication of supporting structures if are merely the civil structures for supporting the machines/ apparatus used in manufacture of final product stands excluded from the definition of capital goods. But if such structures satisfies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be said to have been used for civil construction but for the construction which are absolutely necessary for establishing a manufacturing unit. Further, the Hon ble Chhattisgarh High Court in the case of CCE vs. Vimla Infrastructure India (P) Ltd (Supra), while taking note of various other High Court decisions, has ruled that the assessee is entitled to avail credit on construction of railway siding which is used for providing cargo handling services during the period covered under the amended Cenvat Credit Rules post 01.04.2011. In view of the decisions of the various High Courts and the Tribunal wherein the user test principle has consistently been followed, we are of the view that Cenvat availed by the appellant for setting up of CHP, which is used for evacuation of coal by rapid loading process, cannot be legally denied. 9. Further, the said CHP has been set up with the view to modernise the coal loading process in the mines also satisfies the definition of input service. Moreover, since the credit has been allowed by the Department on certain invoices raised by the Contractor, the Department has in-principle found the service to be eligible for credit. We also agree ..... X X X X Extracts X X X X X X X X Extracts X X X X
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