2012 (11) TMI 241 - AT - Central Excise

Waiver of pre-deposit cenvat credit - credit in respect of the service tax paid on maintenance and repairs of windmill which is situated outside the factory Held that - Applicants are entitled for credit in respect of the service tax paid for maintenance and repairs of the windmill situated outside the factory as the electricity produced is used in the factory of production - applicants own case held in favour of the applicants - requirement of pre-deposit waived in favor of assessee

Summary

Issues Involved:
1. Entitlement to CENVAT credit for services availed at a windmill farm situated away from the manufacturing unit.
2. Requirement of pre-deposit during the pendency of the appeal.

Issue-wise Detailed Analysis:

1. Entitlement to CENVAT Credit for Services at Windmill Farm:

The appellant, M/s. Maharashtra Seamless Ltd., operates a manufacturing unit in Raigad and a windmill farm in Satara. The electricity generated at the windmill farm is supplied to the Maharashtra State Electricity Board (MSEB), which then provides an equivalent amount of electricity to the manufacturing unit. The appellant took credit for the service tax paid on services availed at the windmill farm, amounting to Rs. 2,17,882/-. A show cause notice was issued, arguing that these services do not qualify as 'input service' for the manufacture of goods at the Raigad unit. The jurisdictional Assistant Commissioner confirmed the demand and imposed penalties, which was upheld by the Commissioner of Central Excise (Appeals).

The appellant relied on previous Tribunal decisions in their own case and in the case of Endurance Technologies Pvt. Ltd., which allowed CENVAT credit for services utilized at the windmill farm. However, contrary decisions were cited, including Rajhans Metals (P) Ltd., Ellora Times Ltd., Rajshanti Metals Pvt. Ltd., and Meghdev Enterprises, where the Tribunal held that services received at a windmill farm situated far from the factory do not qualify for CENVAT credit. The Gujarat High Court has admitted appeals against these decisions but has not granted a stay.

The Tribunal concluded that the services availed at the windmill farm, which is far from the manufacturing unit and relates to non-excisable electricity supplied to the state grid, do not qualify as 'input service' under the CENVAT Credit Rules. The electricity generated is not captively consumed in the manufacture of excisable goods at the factory. The Tribunal relied on the Supreme Court's judgment in Maruti Suzuki Ltd., which held that inputs used in generating electricity are eligible for CENVAT credit only if the electricity is used within the factory of production. The Gujarat Heavy Chemicals Ltd. case also supported this view, emphasizing the need for a close nexus between the input service and the manufacture of final products.

2. Requirement of Pre-deposit During the Pendency of the Appeal:

The Tribunal was divided on whether the appellant should be required to make a pre-deposit. The Member (Technical) directed a pre-deposit of 50% of the CENVAT credit wrongly availed, citing the need for compliance with the CENVAT Credit Rules and the lack of a prima facie case for complete waiver.

The Member (Judicial) disagreed, noting that the appellant had a final decision in their favor in their own case and that appeals against contrary decisions were pending before the Gujarat High Court. The Member (Judicial) argued that the balance of convenience favored the appellant and cited the precedent of unconditional waiver in similar cases, such as Crompton Greaves.

The third member, S.S. Kang, resolved the difference by agreeing with the Member (Judicial). He noted the existence of contrary Tribunal decisions and the Kerala High Court's ruling in Binani Zinc Ltd., which supported waiver in such circumstances. Consequently, the majority decision was to grant a 100% waiver of pre-deposit, staying recovery during the pendency of the appeal.