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TMI Blog2008 (9) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of penalty of identical amount in terms of Rule 15 of the CENVAT Credit Rules, 2004 read with Section 78 of the Finance Act, 1994 read with Section 76 and 77 of the Finance Act, 1994. 2. We have heard ld. Advocate Shri V.S. Nankani appearing for the appellant and ld. Jt. CDR Smt A. Vasudev appearing for the Revenue. Both sides have subsequently filed written submissions. 3. The major part of the demand relates to the credit availed in respect of steel and cement which stand used for the construction of jetty and port building. The ld. Advocate has clarified that the credit of the excise duty paid only on that quantum of cement and steel stands availed by them, which was used for construction of port jetty, port building and the other storage facilities Inasmuch jetty building and storage tanks etc. are essential for providing the port services, warehousing and cargo handling services, and such out put services cannot be rendered by the appellant in absence of jetty and storage, the cement arid steel have to be considered as necessary inputs so as to make them eligible for the purpose of credit. By drawing our attention to the definition of inputs, capital goods and input se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected by the Tribunal in the case of M/s. Bhushan Steel & Strips Ltd. Vs. CCE, Raigad [2008 (223) ELT 517 (Tri.-Mum.)].. 4. As against the above stand of the appellant, ld. Jt CDR has submitted that admittedly port jetty does not fall within the definition of capital goods inasmuch as the same is not covered by any of the definition, clause, as contained in Rule 2(a). The cement and steel are not covered by even the definition of components, spares and accessories as contained in Rule 2(a)(A)(iii) nor do jetty and office buildings fall under Rule 2(a)(A)(i) and as such the same Cannot be considered to be eligible inputs for the manufacture of capital goods. The appellants are further barred from availing the credit on inputs of the so called capital goods in view of explanation to Rule 2(k)(ii) which reflects only inputs used in the manufacture of the capital goods which are further used in the factory of the manufacturers to be eligible inputs. Since the appellant's premises is not a factory so the credit which is indirectly used in any infrastructure required for rendering the port services is not permissible Even the assessee is not entitled to avail the credit by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 commonly known as petrol and motor vehicles used for providing any output service; - (1) "input service" means any service,- (i) used by a provider of taxable service for providing an output service, or (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and (clearance of final products upto the place of removal) and included services used in relation to setting up, modernization, renovation or repairs of a factory, premises o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to all inputs either used in or in relation to the manufacture of the final product or for any other purposes within the factory of production. On the other hand the definition of inputs as contained in clause (ii) is limited to all goods, used for providing any output service. If the expression used for providing any output service is required be given wide import, as contended by the ld. Advocate and is required to be expanded to such an extent so as to cover the raw materials used for construction of port buildings or jetty etc., the difference in the definitions, as carved out by the legislation, would get diminished and blurred. The legislation in it wisdom has given extended meaning to the definition of input as contained in clause (i) and comparatively a simple and restrictive meaning as contained in clause (ii). If the identical treatment is to be given to the definition of inputs as contained in clause (ii), the distinction drawn by the legislation, i.e. by giving wider scope to the definition of input as contained in clause (i) and restricted as given in clause (ii) would become otiose and as such frustrative of the legislative intent. 8. Having observed as above, we p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and are integrally connected with the port services and the other warehousing and storage services. Similarly hiring of cars for use by the port officers and as such availability of the credit of service tax paid on them under rent a cab services can be held to be availed for the purposes of providing output services. The same are covered by the definition of input services as contained in Rule 2(1) of Central Excise Rules inasmuch as the same are used by a provider of taxable service for providing a output service. We also note that the Commissioner (Appeals), Rajkot vide order-in-appeal No. 346/2007/Commr (A)/RAJ dt. 30/11/2007 has allowed credit of the service tax paid by the appellants on mobile phone, rent a cab, CHA & Surveyor charges and professionals. The said order has not been challenged by the Revenue and as such has attained finality. We accordingly hold that the credit in respect of the same is available to the appellant. 11. However, we do not agree with the appellant that the service tax paid on the club house fees, which are meant for recreation of the workers is available as credit to the appellant inasmuch as the same cannot be held to be in anyway used for prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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