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TMI Blog2009 (4) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... ices, grass cutting and maintenance of trees, security provided at jetty, maintenance of clinker handling machines installed at jetty during the period from 1-9-2005 to 31-8-2006 and accordingly was directed to show cause as to why the above credits availed on the said services should not be denied and recovered under proviso to Section 11A(1) of the Central Excise Act, 1944 (hereinafter referred to as the Act) read with Rule 15(2) of the Cenvat Credit Rules, 2004 (hereinafter referred to as the Rules) along with interest under Rule 14 of the Rules read with Section 11AB of the Act and besides with proposal to impose penalty under Rule 15(2) of the Rules since those credits were not input services for the final product i.e. cement; that in respect of second referred OIO, SCN dated 22-8-2007 it was alleged that the appellant had availed and utilized Cenvat credit of Rs. 21,645/- on mobile telephone of employees, miscellaneous work regarding gardening, grass cutting, tour operator services, security at jetty, plantation job, maintenance of machinery of jetty during the period from September 2006 to March 2007 and it was proposed to deny the same. Further, the appellant also availed C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the other service, viz. repair/maintenance service of clinkers and handling/storing machines installed at Bhagavati Bander jetty and security agency services received for security of said jetty and labour supply services availed for loading/unloading of clinkers at jetty and general maintenance/cleaning services availed at jetty are indirectly related to their manufacturing activity at the said jetty as the appellant is receiving the raw material, viz. cement clinkers at jetty and thus the said jetty is for all practical purposes the extended part of their manufacturing activity, and hence the credit of Rs. 80,142/- availed on the above said services is not deniable; (iv) that the services, viz. cleaning/maintenance of garden/trees/plantation etc. in the factory premises are bound to be treated as input services as the same were used to avoid pollution and hence related to their manufacturing activity as held by the Apex Court in the case of Indian Farmers Fertiliser Co-operative Ltd. v. CCE, Ahmedabad [1996 (86) E.L.T. 177 (S.C.)] and thus credit of Rs. 45,271/- involved in both the appeals is not deniable; (v) that the credit of Rs. 387/- availed on tour operator services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacturer who has availed the credit on input service wrongly. 3. P.H. was held on 16-4-2009 at 1.00 P.M. Shri V.B. Gaikwad, Advocate, duly authorized by the appellant appeared before me. None appeared from Department's side despite intimation. 3.1 During the hearing, at the outset, the Advocate requested to have a common proceeding for both the appeals, as the issues involved is availment of credit of various input services. During the hearing, in addition to reiterating the submissions made in the appeal memorandum, the Advocate has also submitted the copies of the decisions already relied upon in the appeal memorandums. He has also relied upon the following decisions - (i) Ambuja Cement Ltd. v. UOI - 2009 (14) S.T.R. 3 (P & H) = 2009 (236) 431 (P & H), (ii) Avon Ispat and Power Ltd. v. CCE - 2009 (14) S.T.R. 137 (Tri.-Delhi) (iii) Millipore India Ltd. v. CCE, Bangalore-II - 2009 (13) S.T.R. 616 (Tribunal) = 2009 (236) E.L.T. 145 (Tribunal) = 2009 (91) RLT 96 (CESTAT-Bangalore) 3.2 He has submitted copies of three Purchase orders dated 30-12-2005 of M/s. Monalisa Cement Agency Pvt. Ltd. and 23-3-2007 of M/s. Banka Constructions and 1-3-2007 of M/s. M.B. Gharpure Engineerin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the purchaser and also not having charged freight charges separately over and above the invoice value which includes freight also, the appellant is eligible to avail input service credit, i.e. GTA service as the same is being used from the factory to up to the place of removal and they have satisfied the conditions set out in the Board's Circular (supra) read with case laws supported by the Punjab and Haryana High Court decision in the case of Ambuja Cement Ltd. v. UOI and other cases mentioned supra. Under the above background, I would like to discuss service-wise and then come to the conclusion whether those services could be considered as input service for the appellant. 4.2 As regard to Cenvat credit availed on mobile phone and land line telephones installed at the residential premises of the employees, the appellant claims the same is not deniable in the light of the Hon'ble Tribunal decision in the case of Indian Rayon and Industries Ltd. v. CCE [2006 (4) S.T.R. 79] and Final Order Nos. A/526 & 527/C-IV/SMB/2007, dated 20-3-2007 of the Mumbai Tribunal in the case of CCE, Pune-I v. M/s. Bombay Burmah Trading Corpn. Ltd. Formica (India) Division & another. I have perused the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court in the above case held that the pollution control equipments/devices are treatable as part and parcel of the manufacturing activity. In the case before the Apex Court, the items involved are equipments and devices which were used to control the pollution and accordingly the Apex Court held that the same are to be treated as part and parcel of the manufacturing activity. Following the above ratio that in the place of equipments/devices, in the instant case, services such as cleaning/maintenance of garden/trees, plantation etc. are used to control the pollution created by the industry and thus the same could be considered as input services which are used in relation to the manufacture of final product, viz. cement. It is a matter of common knowledge that cement industry creates pollution and the State Govt. is very particular that industries which are engaged in the manufacture of such items should take precautionary measures to control the pollution. Accordingly, the appellant has undertaken precaution and kept the surrounding pollution free by utilizing/availing the above mentioned services. Accordingly, I hold that those services are used in relation to the manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X
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