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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 ..... rgo handling services, which are leviable to service tax, during the relevant period. The dispute in the present appeal relates to availment of credit of excise duty paid on the inputs, capital goods and the input services utilized by the appellant for providing output services. By disallowing such credit the adjudicating authority has confirmed the demand of duty to the tune of around Rs 12.79 crores along with confirmation of interest and imposition 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the goods are used directly used for such out put services. The Commissioner has himself introduced the word directly' in the definition of input as contained in Rule 2(k) of the CENVAT Credit Rules. Further the reasoning of the adjudicating authority that port jetty, port building and the storage warehousing buildings are immovable properties cannot be a ground to deny the CENVAT Credit of the excise duty paid on the inputs. This contention stands 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 cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riff Act; (ii) pollution control equipment; (iii) components, spares and accessories of the goods specified at (i) and (ii); (iv) moulds and dies, jigs and fixtures; (v) refractories and refractory materials; (vi) tubes arid pipes and fittings thereof; and (vii) storage tank, used- (1) in the factory of the manufacturer of the final products, but does not include any equipment or appliance used in an office; or (2) for providing output service; (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 commonly known as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we compare the definition of inputs as contained in the said two clauses, we note the following differences; (a) the definition of input in clause (i) refers to all goods, used in or in relation to the manufacture of final products; (b) whether-directly or indirectly (c) whether contained in the final product or not (d) used for any other purpose, within the factory of production. As is seen from the above, the definition of input as contained in clause (i) is too wide a definition and refers 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 extend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1ability of credit of service tax paid on mobile phones stand decided by the Tribunal in the following decisions. i. CST, New Delhi Vs. STIC Travels Pvt. Ltd . [2007 (83) RLT 605 (CESTAT-Del.) = 2007 (8) STR 495 (Tri. Del.)] ii. Indian Rayon Inds. Ltd. Vs. Comm. [2006 (4) STR 79 (Tri.)] iii. Excel Crop Care Ltd. Vs CCE [2007(81) RLT 566 (CESTAT-Ahmd.) = 2007 (7) STR 451] 10. Similarly we find that the services of CHA and surveyors availed by the appellant are used for the purposes of providing output services 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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