2013 (10) TMI 620 - AT - Central Excise

CENVAT credit on input services Waiver of Pre-deposit - Eligibility of the appellant for Cenvat credit in respect of input services availed for erection, installation, commissioning, repair and maintenance of the wind mills is in question Held that - Credit in respect of the service tax paid on maintenance and repairs of windmill which is situated outside the factory - Following Maharashtra Seamless Ltd. vs. CCE, Raigad 2012 (11) TMI 241 - CESTAT MUMBAI - 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 the requirement of pre-deposit of Cenvat credit demand, interest and penalty is waived for hearing of the appeal - Stay granted.

Summary

Issues involved:
Eligibility of the appellant for Cenvat credit in respect of input services availed for erection, installation, commissioning, repair, and maintenance of wind mills.

Analysis:
The appellant, a cement manufacturer, availed input services for the erection, installation, commissioning, repair, and maintenance of wind mills at a location away from their manufacturing unit. They claimed Cenvat credit for the service tax paid on these services. However, the department disputed their eligibility for this credit, leading to a show cause notice for denial of the credit, recovery of the amount with interest, and imposition of a penalty. The Additional Commissioner confirmed the demand, imposed a penalty, which was upheld by the Commissioner (Appeals). The appellant appealed this decision along with a stay application.

During the hearing, the appellant's counsel referred to a Tribunal judgment in a similar case, Maharashtra Seamless Ltd. vs. CCE, Raigad, where the issue of Cenvat credit eligibility for similar services was decided in favor of the appellant. The counsel argued that based on this precedent, a stay had been granted in the appellant's subsequent case, and requested a similar waiver of pre-deposit and stay of recovery in the current appeal.

The Departmental Representative opposed the stay application, emphasizing that since electricity is an exempted excisable good, the input services used for generating electricity would not be eligible for Cenvat credit. It was also highlighted that not all electricity generated by the wind mill was supplied to the appellant's manufacturing unit.

After considering the arguments from both sides and reviewing the records, the judge noted that the issue had been decided in favor of the appellant in the Tribunal's earlier judgment. Consequently, the requirement of pre-deposit of the Cenvat credit demand, interest, and penalty was waived for the appeal hearing, and recovery was stayed until the appeal's disposal.

In conclusion, the Tribunal allowed the stay application, granting the appellant relief from the pre-deposit requirement and staying the recovery of the Cenvat credit demand, interest, and penalty until the appeal was resolved.