2014 (5) TMI 213 - AT - Service Tax

CENVAT Credit - erection, installation & commissioning, repair & maintenance and insurance - production of fly ash - Held that - There is no dispute that the services, in question, had been availed in respect of a plant for extraction and handling of fly ash at the premises of M/s. NTPC. The fly ash arises in the course of burning of coal for generation of electricity and as such, it cannot be said that the appellant had produced or manufactured the fly ash. Prima facie, the plant set-up by the appellant at the premises of M/s. NTPC appears to be for extraction & handling of the fly ash. Since fly ash is one of the raw materials used for manufacture of cement, I am of the view that the services availed for fabrication, erection & installation & repair and maintenance and insurance in respect of fly ash plant at the premises of NTPC, have to be treated as the services availed for procurement of inputs. The Department s case is based on the allegation that the appellant have manufactured fly ash, an exempted final product, which prima facie does not appear to be correct. In view of this, the requirement of pre-deposit of Cenvat credit demand, interest and penalty is waived for hearing of the appeal and recovery thereof is stayed till the disposal of the appeal - Stay granted.

Summary

Issues:
1. Eligibility of Cenvat credit for services used in the production of fly ash, an exempt product.

Analysis:
The case involved the appellants, who are manufacturers of Cement, receiving fly ash from a Power Plant for their production process. The Department contended that the appellants were not eligible for Cenvat credit on services used for the production of fly ash, which is considered an exempt product. A show cause notice was issued for the recovery of allegedly wrongly taken Cenvat credit, along with interest and penalty. The Asstt. Commissioner confirmed the Cenvat credit demand in the Order-in-Original, imposing a penalty as well. The appeal to the Commissioner (Appeals) was dismissed, leading to the current appeal along with a stay application.

During the hearing, the appellant's counsel argued that the services were used for setting up the plant for extraction, storage, and handling of fly ash, not for manufacturing fly ash itself. They contended that the services were essential for procurement of inputs and fell under the definition of "input services." The appellant relied on a Tribunal judgment to support their case. On the other hand, the Departmental Representative opposed the stay application, emphasizing that the services were used away from the factory and had no direct connection with the final product manufacturing process.

After considering both sides' arguments and examining the records, the Member (T) found that the services were indeed used for the extraction and handling of fly ash at the Power Plant's premises. Since fly ash was a raw material for cement manufacturing, the services for the fly ash plant were deemed essential for input procurement. The Member noted that the Department's claim that the appellants manufactured fly ash, an exempt product, was not convincing. Therefore, the requirement of pre-deposit of Cenvat credit demand, interest, and penalty was waived for the appeal hearing, and the recovery was stayed until the appeal's disposal. Consequently, the stay application was allowed.