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TMI Blog2024 (1) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... viding the construction service. The case of the department is that the appellant is not eligible for cenvat credit in respect of the aforesaid goods as per Rule 2(k) of Cenvat Credit Rules, 2004 as amended by Notification No. 16/2009-CE dated 07.07.2009. The contention of the Revenue is that as per the amended Rule 2 (k), the goods on which credit was taken have been excluded. Accordingly, a show cause notice was issued and vide impugned order the cenvat credit was disallowed. Therefore, the present appeal. 2. Shri Hardik Modh, Learned Counsel appearing on behalf of the appellant at the outset submits that the amendment made by Notification No. 16/2009-CE dated 07.07.2009 in Rule 2 (k) of Cenvat Credit Rules, 2004 the exclusion provided u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Explanation 1. The light diesel oil, high speed diesel oil or motor spirit, commonly known as petrol, shall not be treated as an input for any purpose whatsoever, Explanation 2.- Input incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted on 22-1-2009 on the following substantial question of law : "Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in rejecting the claim of the assessee in light of the provisions of Rule 2(k) of the Cenvat Credit Rules, 2004" 5. We have heard Mr. Hardik Modh, learned counsel for the appellant and Mr. Y.N. Ravani, learned counsel for the respondent. 6. Before deciding the question, we deem it appropriate to extract Rule 2(k) and 2(l) of the Cenvat Credit Rules, 2004. "Rule 2(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 indir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y control, coaching and training, computer networking, credit rating, share registry, and security, inward transportation of inputs or capital goods and outward transportation up to the place of removal." 7. It is not disputed that jetty was constructed and input credit was claimed on cement and steel. The aforesaid definition of Rule 2(k) was applicable and Explanation 2 did not provide that cement and steel would not be eligible for input credit. According to learned Counsel for the appellant, the appellant is not manufacturer and, therefore, the provisions of Explanation 2 of Rule 2(k) would be applicable only to the factory and manufacturer. The appellant is neither having any factory nor he is manufacturer. The appellant is a service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P) Limited, 2011 (270) E.L.T. 33 (A.P.) = 2011 (23) S.T.R. 341 (A.P.) wherein in Paragraph 7, it has been clearly held that a plain reading of the definition of Rule 2(k) would demonstrate that all the goods used in relation to manufacture of final product or for any other purpose used by a provider of taxable service for providing an output service are eligible for Cenvat credit. It is not in dispute that the appellant is a taxable service provider on port under the category of port services. Therefore, the appellant was entitled for input credit and the decision of the Division Bench of the Andhra Pradesh High Court squarely applies to the facts of the case and answered the question on which the appeal has been admitted. 8. Mr. Y.N. Rav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .) would not be applicable to the facts of the instant case. 9. Mr. Ravani has also vehemently urged that since jetty was constructed by the appellant through the contractor and construction of jetty is exempted and, therefore, input credit would not be available to the appellant as construction of jetty is exempted service. The argument though attractive cannot be accepted. The jetty is constructed by the appellant by purchasing iron, cement, grid, etc., which are used in construction of jetty. The contractor has constructed jetty. There are two methods, one is that the appellant would have given entire contract to the contractor for making jetty by giving material on his end and then make the payment, the other method was that the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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