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2014 (6) TMI 583 - AT - Central ExciseCENVAT Credit - whether an assessee is eligible to avail CENVAT Credit of an amount paid as Service Tax by a service provider in respect of installation and erection, maintenance or any other services rendered at wind mills, which are located away from the factory premises and the electricity generated out of such wind mills is consumed at the factory premises after such power is to put through the common grid - Held that - there being contrary views expressed as regards the availment of CENVAT Credit of Service Tax paid on the services rendered by a service provider at wind mill farms which is situated away from the factory premises, this matter needs to be sorted out by a Larger Bench. - Matter referred to larger bench.
Issues:
- Eligibility of an assessee to avail CENVAT Credit for Service Tax paid by a service provider for services at wind mills located away from factory premises. Analysis: 1. The appeals were listed before the Single Member Bench, but due to the need for consideration by the Larger Bench, they were placed before the Division Bench for disposal. 2. After hearing both sides and examining the records, the main issue in these appeals was identified as the eligibility of an assessee to avail CENVAT Credit for Service Tax paid by a service provider for services at wind mills situated away from the factory premises. 3. The appellant's counsel argued that previous Tribunal decisions had conflicting views on this matter. They cited the case of Rajhans Metals Pvt.Ltd., where it was held that CENVAT Credit is not available for Service Tax paid on wind mills away from factory premises. However, other decisions like Rajratan Global Wires Ltd. and Endurance Technologies Pvt.Ltd. took an opposite view. The appellant requested a reference to a Larger Bench due to the contradictory views and cited a judgment by the Mumbai High Court supporting their stance. 4. The Departmental Representative contended that the decision in Lanxess ABS Ltd. should be binding, as per the Supreme Court's ruling in the case of Gammon India Ltd. They argued against considering the contrary views expressed in the cases of Endurance Technologies Pvt. Ltd. and Rajratan Global Wires Ltd. 5. Upon careful consideration, the Bench acknowledged the conflicting views within the Tribunal regarding the availment of CENVAT Credit for Service Tax paid on services at wind mill farms away from factory premises. 6. The Bench noted that while some decisions followed the view of Rajhans Metals Pvt. Ltd., others like Rajratan Global Wires Ltd. took a different stance, leading to a clear contradiction within the Tribunal's decisions. 7. Given the conflicting views and the need to resolve the controversy arising from different Tribunal decisions, the Bench decided to refer the matter to a Larger Bench for clarification and to establish a consistent position on the issue. 8. The Registry was instructed to present the case before the Honorable President for the constitution of a Larger Bench to address the controversy and reconcile the divergent views expressed by different Tribunal Benches. All relevant case laws were to be provided for consideration. 9. The final decision was to refer the matter to a Larger Bench for resolution and to bring clarity to the issue of availing CENVAT Credit for Service Tax paid on services provided at wind mills located away from factory premises.
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