2018 (5) TMI 771 - AT - Central Excise

CENVAT credit - input services used in wind mill for generation of electricity - Held that - the Tribunal in the case of the appellants M/s. Mangalam Cement Ltd. Versus C.C.E. Jaipur-I 2017 (8) TMI 1096 - CESTAT NEW DELHI has held that Service Tax paid on input services used in the wind mill for generation of electricity will be available as Cenvat credit - Revenue has assailed the impugned order on the ground that this decision has been appealed against before the Hon ble Rajasthan High Court and thus the said order cannot be considered for allowing the Cenvat benefit to the present respondent. Since the decision passed by the Tribunal has not been stayed or over-ruled by the higher judicial forum the views expressed by the Tribunal regarding entitlement of Cenvat credit cannot be disturbed at this juncture for deciding the issue differently. Appeal dismissed - decided against Revenue.

Summary

Issues: Denial of Cenvat credit for service tax in wind mill operation for electricity generation.

Analysis:
1. The appeals were filed against the order passed by the Commissioner denying Cenvat credit of service tax for input services used in a windmill for electricity generation.

2. The Tribunal had previously held in two separate orders that Service Tax paid on input services for generating electricity through windmills is eligible for Cenvat credit.

3. The Revenue challenged the impugned order citing an appeal against a previous order before the Rajasthan High Court, arguing that the previous order cannot be considered for granting Cenvat benefit to the respondent.

4. The Revenue failed to provide evidence that the previous order had been stayed or overruled by the Rajasthan High Court. As there was no evidence of a stay or overruling, the Tribunal held that the views expressed regarding Cenvat credit entitlement should stand.

5. Consequently, the Tribunal found no merit in the Revenue's appeals and dismissed them, upholding the availability of Cenvat credit for service tax on input services used in windmills for electricity generation.

This judgment clarifies the eligibility of Cenvat credit for service tax paid on input services used in windmills for electricity generation, based on previous Tribunal decisions. It emphasizes the importance of providing evidence of stay or overruling by a higher judicial forum when challenging previous orders. The decision provides certainty to taxpayers regarding Cenvat credit entitlement in such scenarios and upholds consistency in tax treatment based on established legal precedents.