Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, Nagpur vs M/S Ultratech Cement Ltd on 7 July, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
Appeal No. E/361/09 - Mum
(Arising out of Order-in-Appeal No. SN/01/NGP/2009 dated 06/14 .01.2009passed by the Commissioner of Central Excise (Appeals), Nagpur)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
Commissioner of Central Excise, Nagpur
:
Appellants
Versus
M/s Ultratech Cement Ltd.
Respondents
Appearance Shri S.M. Vaidya, JDR for Appellants Shri Bharat Raichandani, Advocate for Respondents CORAM:
Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 7.7.10 Date of Decision : 7.7.10 ORDER NO.
Per : Ashok Jindal By this appeal, the Revenue is challenging the impugned order wherein the input service credit was allowed by the Commissioner (Appeals) to the respondent.
2. The facts of the case are that the respondents are manufacturer of cement. They were availing CENVAT credit of Service Tax under the provisions of CENVAT credit Rules, 2004. The respondent availed CENVAT credit of Service Tax on account of services like for construction, erection, installation and other services like maintenance and repairs used in the Fly Ash Plant situated at Thermal Power Plant which is outside of the factory premises. A show-cause notice was issued and demand was confirmed. Against that order, the respondent filed an appeal before the Commissioner (Appeals) who in turn allowed the appeal by relying on Vikram Cements vs. Commissioner of Central Excise, Indore 2006 (197) ELT 145 (SC) wherein the Honble apex court has held that the MODVAT/CENVAT credit on capital goods, if the mines are captive mines so that they constitute one integrated unit together with the concerned cement factory, MODVAT/CENVAT credit on capital goods will be available to the assessee.
3. The learned DR submitted that in this case the respondent has availed the services at Thermal Power Plant which is outside the factory premises and the Commissioner (Appeals) has wrongly relied on the Vikram Ispat case as the facts are not similar. He further submitted that the Commissioner (Appeals) has not discussed the issue on merit whether the respondent is entitled to the CENVAT Credit as per the Rule 2(l) of the CENVAT Credit Rules or not. Hence, the impugned order is liable to be set aside.
4. Heard and considered.
5. The CENVAT Credit to the respondent was denied as proposed in the show-cause notice on the basis of that these services were received outside the factory premises. The CENVAT credit on input service is available as per Rule 2(l) of the CENVAT Credit Rules, 2004 which is reproduced here as under:-
(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 of provider of output service or an office relating 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 up to the place of removal;
6. From the plain reading of the Rule 2(l) of the CENVAT credit Rules, 2004, it is seen that no where it is mentioned that the input service credit is not available for the services utilized outside the factory premises. The denial of CENVAT credit on the ground that the services were not received by the respondent in the factory premises, is not sustainable. Accordingly, I do not find any merit in the appeal and the same is rejected.
(Pronounced in Court) (Ashok Jindal) Member (Judicial) nsk 4