2015 (8) TMI 1234 - AT - Central Excise

Denial of CENVAT Credit - Various services - Held that - Credit on annual operation and maintenance service of windmill, normal maintenance and services availed in respect of functioning of wind mill are allowed. Appeals have been filed by Revenue against cenvat credit of service tax paid on lease rental allowed by the authority below. Record reveals that rent paid is directly attributable to the generation of wind energy. - issue of Cenvat credit of service tax paid on rental services is also allowed. Protection of the windmill being an integral part of generation of wind energy, the service tax paid on security services availed should be allowed as Cenvat credit - Revenue has no evidence to discard such submission placing any cogent evidence to the contrary to establish that there is no integral relation between the security services availed to protect the windmill and ensure operation thereof. Accordingly, Cenvat credit on this count is also allowed. Insurance policy taken to protect them from various health hazards is obligation of the employer under the Factories Act. Accordingly, service tax paid in respect of such services is considerable tor allowance of Cenvat credit. Revenue does not dispute to such claim since there was no evidence on record to show that policy relates to any other property or contingency. Accordingly, the Cenvat credit relating to service tax paid on availing insurance services for workers is allowable. Cenvat credit on service tax paid to avail passenger carrying package policy is claimed. But no evidence was produced to show that such a policy has any integral connection either to any output or output services. In absence of such integral connection, Cenvat credit thereon is not allowable. There is a claim of insurance paid towards fire policy of factory-residential colony. Nothing was brought to record to show that the residential colony was for workers of the factory. Therefore, without the connection of the insurance policy to the workplace or workers, the claim of Cenvat credit on service tax paid in respect of insurance service is not allowable. Crane charges tor windmill blade replacement claimed in one of the appeal was not refuted by Revenue. Such activity is not strange to the windmill operation or set up. Blades being affixed to the windmill at a quite high level from the earth, using of service of crane for such purpose cannot be said to be without nexus to maintenance of the windmill. Therefore, Cenvat credit in respect of service tax paid to avail the services of the crane is allowed. There is a claim of availing club services, which are no way concerned for either manufacture or providing of output services. In such circumstances, the claim of input credit thereof is not allowed. - Decided partly in favour of assessee.

Summary

Issues Involved:
1. Maintenance and service charges for windmill
2. Annual operation and maintenance of windmill
3. Crane charges for windmill blade replacement
4. Lease rental
5. Term loan processing charges for purchase of windmill and machinery
6. Service charges for windmill
7. Cenvat credit on capital goods (Gearbox for windmill)
8. Insurance policy for workers welfare
9. Passengers carrying package policy
10. Telephone expenses
11. Insurance paid towards fire policy of residential colony
12. Security charges of windmill
13. Outward transportation of goods
14. Club charges

Detailed Analysis:

1. Maintenance and Service Charges for Windmill:
The Tribunal allowed Cenvat credit for maintenance and service charges for the windmill. It was established that these services are integral to the functioning of the windmill, and the energy generated was used for manufacturing or service provision.

2. Annual Operation and Maintenance of Windmill:
Cenvat credit for annual operation and maintenance services of the windmill was allowed. The Tribunal acknowledged the necessity of these services for the continuous operation of the windmill and their direct connection to the generation of power used in manufacturing.

3. Crane Charges for Windmill Blade Replacement:
The Tribunal allowed Cenvat credit for crane charges used for windmill blade replacement. It was recognized that such services are essential for the maintenance and operation of the windmill.

4. Lease Rental:
Cenvat credit on lease rentals was allowed. The Tribunal referenced a previous decision that recognized the lease rental as directly attributable to the generation of wind energy.

5. Term Loan Processing Charges for Purchase of Windmill and Machinery:
The Tribunal allowed Cenvat credit for service tax paid on term loan processing charges for the purchase of windmill and machinery. It was established that these charges were directly related to the acquisition of capital goods necessary for the windmill.

6. Service Charges for Windmill:
Cenvat credit for service charges related to the windmill was allowed. The Tribunal found these services to be necessary for the operation and maintenance of the windmill.

7. Cenvat Credit on Capital Goods (Gearbox for Windmill):
The Tribunal allowed Cenvat credit for the gearbox used in the windmill. The gearbox was deemed essential for the windmill's operation, thus qualifying as capital goods.

8. Insurance Policy for Workers Welfare:
Cenvat credit for the insurance policy taken for workers' welfare was allowed. The Tribunal recognized the employer's obligation under the Factories Act to ensure workers' welfare and safety.

9. Passengers Carrying Package Policy:
Cenvat credit for the passengers carrying package policy was not allowed. The Tribunal found no evidence of an integral connection between this policy and the output services or manufacturing process.

10. Telephone Expenses:
Cenvat credit for telephone expenses incurred outside the factory was not allowed. There was no evidence to establish a connection between these expenses and the manufacturing process or output services.

11. Insurance Paid Towards Fire Policy of Residential Colony:
Cenvat credit for insurance paid towards the fire policy of the residential colony was not allowed. The Tribunal found no evidence linking the residential colony to the factory workers or the manufacturing process.

12. Security Charges of Windmill:
Cenvat credit for security services availed for the windmill was allowed. The Tribunal acknowledged the necessity of these services for the protection and operation of the windmill.

13. Outward Transportation of Goods:
Cenvat credit for outward transportation of goods was allowed. The Tribunal recognized that these services were part of the contract and inseparable from the manufacturing process.

14. Club Charges:
Cenvat credit for club charges was not allowed. The Tribunal found no connection between these charges and the manufacturing process or output services.

Conclusion:
The Tribunal allowed Cenvat credit on various services and goods related to the operation and maintenance of windmills, recognizing their direct connection to the manufacturing process. However, claims without sufficient evidence of such a connection were disallowed. No penalties were imposed due to the complexity of interpreting Cenvat credit laws.