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TMI Blog2010 (1) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... and lumps are used as their main raw material. The issue involved in this case is whether the appellant was entitled to avail Cenvat Credit of the Service Tax paid on certain services viz., repair and maintenance services, insurance services, surveys, technical inspection and certification services, and manpower recruitment agency services - all relating to vessels, namely tugs and barges, owned by the appellant. The appellant's factory is situated around the port of Revdanda. This port belongs to the appellant. The ships carrying the raw material are anchored at some distance in the sea. The tugs and barges belonging to the appellant are used for bringing ashore the raw material unloaded from the ships. Sometimes these tugs and barges are also used for carrying sponge iron (final product) from the jetty to the ships anchored in the sea. It appears, the appellant availed 'repair and maintenance services' for the repair and maintenance of these tugs and barges. They also availed 'insurance services' in respect of these vessels. 'Technical inspection and certification services' were also used in respect of these vessels. Survey was also done. It appears from the records that what was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.T.R. 468 (T-LB) are binding on this Bench and that, according to those principles, the Cenvat Credit, in question, should be allowed to the appellant. 4. The learned SDR submits that the applicability of the Hon'ble Supreme Court's judgment in Maruti Suzuki Ltd.'s case and of the Hon'ble High Court's judgment in Coca Cola India Pvt. Ltd.'s case to the facts of a case similar to the facts of the instant case was examined by this Bench in Manikgarh Cement Work's case and, accordingly, the ruling of the apex court in Maruti Suzuki Ltd.'s case will have to be followed by this Tribunal. It is also submitted that the applicability of the Tribunal's Larger Bench decision in GTC Industries' case was considered by this Tribunal in Vikram Ispat Ltd. v. Commissioner - 2009 (16) S.T.R. 195 (Tri.-Mum.) and, accordingly, the relevant plea raised by the appellant in their written submissions should be rejected. 5. I have considered the grounds of this appeal, the written submissions of the appellant and the argument of the learned SDR. The lower authorities have found that the barges and tugs were used in the sea and the channel and not in the jetty. In other words, it has been found that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory is admissible to the respondent is squarely covered by the Hon'ble High Court's decision, in their favour. On the other hand, ld. DR has heavily relied on the Hon'ble Supreme court's decision in Maruti Suzuki case. According to him, the Hon'ble Supreme Court's decision impliedly overrules the High Court's decision. I agree. In the case of Maruti Suzuki, the Supreme Court was considering the definition of 'input' given under the CENVAT Credit Rules. The definition reads as under :- "(k) 'input' means - (i) all goods, except light diesel oil, high speed diesel oil and motor spirit, commonly known as petrol, used in or in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not and includes lubricating oils, greases, cutting oils, coolants, accessories of the final products cleared along with the final product, goods used as paint, or as packing material, or as fuel, or for generation of electricity or steam used in or in relation to manufacture of final products or for any other purpose, within the factory of production; (ii) all goods, except light diesel oil, high speed diesel oil, motor spirit, commonl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inclusive part after the substantive part qualified by the place of use. For example, one of the categories mentioned in the inclusive part is 'used as packing material'. Packing material by itself would not suffice till it is proved that the item is used in the course of manufacture of final product. Mere fact that the item is a packing material whose value is included in the assessable value of final product will not entitle the manufacturer to take credit. Oils and lubricants mentioned in the definition are required for smooth running of machines, hence they are included as they are used in relation to manufacture of final product. The intention of the Legislature is that inputs falling in the inclusive part must have nexus with the manufacture of the final product." (emphasis supplied) The above judgment of the Supreme court hands down an important ruling, which it is to the effect that, where the inclusive part of a definition provides a list of items, any such item should also satisfy the quintessential ingredients of the main part of the definition. In other words, the definition has to be considered in its entirety. The inclusive part is not independent of the main par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nate benches held in their favour. According to the ld. counsel, the Hon'ble High Court's decision in Coca Cola case should be followed as binding precedent in this case. I find that the Hon'ble Supreme Court's ruling in Maruti Suzuki case is to the contra and the same is constitutionally binding on this Tribunal. 7. In the result, the view taken by the lower appellate authority by following an earlier decision of this Tribunal which is presently under challenge before the Hon'ble High Court cannot be accepted. On the other hand, the view taken by the Ld. DR on the strength of the Hon'ble Supreme Court's ruling in Maruti Suzuki case should be followed. Accordingly, it is held that, as the respondent has not established nexus between any of the four services and the manufacture or clearance of excisable goods, the benefit of Cenvat credit in respect of such service cannot be allowed. It is ordered accordingly. However, I think, in a case of this nature, the assessee should not be penalised. This case involves rival interpretations of a provision of law. In typical cases of interpretative nature, penalties have been waived by this Tribunal. In this view of the matter, the order-in- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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