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TMI Blog2023 (11) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... of CENVAT Credit Rules 2004, along with applicable interest under section 11AB of Central Excise Act, 1944, and imposing of like amount as penalty under rule 15 of CENVAT Credit Rules, 2004 that had been set aside. The respondent is a manufacturer of 'cement' and had availed credit of duty/tax paid on 'inputs', 'capital goods' and 'input services' to the extent of Rs. 56,05,486 during 2002-08 and, holding this to be ineligible, the original authority upheld the proposals in the show cause notice, which, in appeal, was set aside in toto leading to this appeal. 2. Learned Authorised Representative submitted that the demand for Rs. 12,74,383, for the period 29th July 2008 to 19th August 2008, availed as credit on procurement of items of iron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds therefrom was a necessary condition for availment of credit and that 'windmill', too would not fit either into that category or neither did service availed in relation to such in terms of rule 2(l) of CENVAT Credit Rules, 2004. 3. Learned Counsel for the respondent placed reliance on the decision of the Hon'ble High Court of Bombay in Commissioner of Central Excise, Pune-II v. Rajaram Bapu Sahakari Sakhar Karkhana Ltd [2019 (365) ELT 14 (Bom.)] and of the Tribunal in Ispat Industries Ltd v. Commissioner of Central Excise, Mumbai [2006 (195) ELT 164 (Tri.-Mumbai)] which found approval of the Hon'ble High Court Bombay vide order dated 19th July 2017 disposing off appeal [central excise appeal no. 187 of 2006] contending that struc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Excise, Raipur [1999 (108) ELT 169 (Tribunal)] and in Mangalam Cement Ltd v. Commissioner of Central Excise, Jaipur-I [2017 (7) TMI 52-CESTAT NEW DELHI] did allow credit of duty paid on 'material handling equipment' as capital goods eligible under CENVAT Credit Rules, 2004. 5. Insofar as the 'annual maintenance contracts' for 'windmills' is concerned, it was contended that the Hon'ble High Court of Bombay, in Deepak Fertilizers & Petrochemicals Corporation Ltd v. Commissioner of Central Excise, Belapur [2013 (32) ELT 532 (Bom.)], had held that there is no restriction, insofar as services are concerned, on inputs being received outside the factory and that the decision of the Hon'ble High Court of Bombay, in Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '5. Being aggrieved the appellant is before this Tribunal. The learned Counsel for the appellant urges that the issue is no longer res-integra and Division Bench of this Tribunal in M/s SD Bansal Iron and Steel Pvt. Ltd. vs. CCE, Bhopal reported in 2017 - TIOL - 784 - CESTAT - DEL. have held in the said case that the appellant has used dumpers/tippers for movement of raw materials such as ingots and billets within the factory. Movement of coal as well as other finished products from one part of the factory to the other have also been handled by making use of dumpers and tippers. Further, Hon'ble Supreme Court in the case of CCE vs. Rajasthan State Chemical Works reported in 2002 - TIOL - 66 - SC - CX - LB observed that the processing and ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inished products liable to duties of central excise. We find that the Hon'ble High Court of Bombay, in re Endurance Technology Pvt Ltd, has considered the identical issue and concluded that '5. On perusal of these Rules, it becomes clear that the management, maintenance and repair of windmills installed by the respondents is input service as defined by clause "l" of Rule 2. Rule 3 and 4 provide that any input or capital goods received in the factory or any input service received by manufacture of final product would be susceptible to CENVAT credit. Rule does not say that input service received by a manufacturer must be received at the factory premises. The judgments referred to above, also interpret the word "input" service in similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Legislature restricted the benefit of Cenvat credit for input services used in respect of inputs only to these two categories viz. for the procurement of inputs and for the inward transportation of inputs. This interpretation which has been placed by the Tribunal is ex facie contrary to 'the provisions contained in Rule 2(l). The first part of Rule 2(l) inter alia covers any services used by the manufacturer directly or indirectly, in or in relation to the manufacture of final products. The inclusive part of the definition enumerates certain specified categories of services. However, it would be farfetched to interpret Rule 2(l) to mean that only two categories of services in relation to inputs viz. for the procurement of inputs and for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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