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TMI Blog2018 (1) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... uticorin Thermal Power Plant (TTPP) respectively. The appellants had entered into a MOU with TNEB whereby they had to install the silos collection system at MTPP that will be the property of TNEB and the operations and maintenance is to be handled by the appellants. In turn, appellants were entrusted the work of operation and maintenance of Dry Fly Ash collection from silos at MTPP to the said Saravana & Co. Ltd., who raised bills for the work claiming of operation and maintenance service with service tax. Based on these bills appellants had been availing Cenvat credit. Further, at TTPP the appellants were given the work of operation and maintenance of fly ash collection system to Sh. A. Jayapal, who also raised similar bills for operation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of fly ash generated in MTPP and TTPP; that the appellants had issued work orders to the said contractors M/s. Saravana & Co. Ltd. and A. Jayapal, not only for operation and maintenance of the collection of the machinery installed by them but also for collection of fly ash and its transportation to the factory of the appellants. Ld. Consultant also makes the following submissions:- a. The services provided by the contractors were directly related to the procurement of fly ash and the service provided by them has got direct bearing on procurement of fly ash b. The fly Ash which was collected from the power plants was exclusively meant fort the appellants cement plant and the subsequent usage of fly ash in the manufacture of cement, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion) Vs. CCE Jaipur 2015 (37) STR 1074 (Tri.-Del). b. Ultratech Cement Ltd. Vs. CCE, Jaipur 2014 (34) STR 426 (Tri. Del.) c. Birla Corporation Ltd. Vs. CCE, Lucknow 2014 (34) STR 589 (Tri.-Del.) d. Jaypee Rewa Plant Vs. CCE, Bhopal 2010 (17) STR 519 (Tri.-Del.) e. CCE, Chennai Vs. Mirra & Mirra Industries 2017 (48) STR 91 (Tri.-Chen.) f. Ultra Tech Cement Ltd. -2011(21)STR 297 and Hence, it is clear that the work orders issued were not just for maintenance and operation but also for collection of fly ash and transportation of the same to the appellants manufacturing premises. However, the department has proceeded on the mistaken premise that only services of operation and maintenance was involved and for which reason the credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellants are entitled to lift only 80% of fly ash and leave the remaining 20% to TNEB; that neither extraction of fly ash takes place within their premises nor the fly ash generated is exclusively used in their factory of manufacture, as such the services in question do not have any nexus in or in relation to the manufacturing of excisable goods and hence Cenvat credit availed on the same is not eligible. 5.2 I find that this conclusion of the Commissioner (Appeals) is misconceived. There is definitely a distinction between the eligibility of Cenvat credit in respect of the credit availed on inputs and capital goods and those availed in respect of input services. Rule 2 (l) of the Cenvat Credit Rules, 2004, during the disputed per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operation and maintenance service was installed. However, Ld. Consultant contends today that the work orders issued by them also incorporated collection of fly ash and its loading and transportation to their manufacturing premises. In the circumstances, for the limited purpose of ascertaining the contention made by the Ld. Consultant, the matter is being remanded to the original authority. In such denovo proceedings, the adjudicating authority shall take into account the submissions and contentions of both the Ld. Consultant and the Ld. AR in para -2 and para-3 above. The appellants should also be permitted to produce any additional evidence in support of their stand. 5.3 Coming to the matter of penalty, from the facts on record, it is evi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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