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TMI Blog2024 (6) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... SERVICE TAX, ROURKELA [ 2023 (12) TMI 117 - CESTAT KOLKATA] . Credit on plantation services - HELD THAT:- The Tribunal cited the case of COMMISSIONER OF CENTRAL EXCISE. SURAT VERSUS M/S. GUJARAT STATE FERTILIZERSS CHEMICALS LIMITED [ 2013 (1) TMI 409 - CESTAT AHMEDABAD] , where it was held that the appellant is eligible to avail Cenvat credit on gardening services as mandated by the Pollution Control Board - the appellant has correctly taken the Cenvat credit of service tax paid by them. There are no merits in the impugned order. The same is set aside - appeal allowed. - SHRI ASHOK JINDAL, MEMBER (JUDICIAL) AND SHRI K. ANPAZHAKAN, MEMBER(TECHNICAL) Shri Deepro Sen, Advocate for the Appellant (s) Shri S. Mukhopadhyay, Authorized Representative for the Revenue ORDER The appellant is in appeal against the impugned order denying Cenvat Credit on the ground that the services availed by the appellant was not taxable services at the end of the service provider and Cenvat credit of service tax paid on plantation services also sought to be denied. 2. The facts of the case are that the appellant is engaged in the manufacture of excisable goods such as Alumina Hydrate and Calcined Alumina. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice provider. In that circumstances, it cannot be disputed at the end of the service recipient. It is admitted fact that whatever service tax has been paid by the appellant, the appellant has taken the Cenvat credit of the same and it is also not disputed by the respondent that the above said services on which service tax has been paid by the appellant were not received by the appellant. Therefore, whatever service tax paid by the appellant on the services received is entitled to Cenvat credit as held by this Tribunal in appellant s own case as reported in 2023 (12) TMI 117-CESTAT KOLKATA . Moreover, the service tax paid on Plantation Service also cannot be denied on the ground that the same is having no nexus with the manufacturing activity of the appellant. As the appellant is doing plantation for the better environment in their factory premises, in that circumstances, it cannot be said that the said activity have no direct or indirect nexus to their manufacturing activity. In that circumstances, Cenvat credit cannot be denied to the appellant. 5. We find that in appellant s own case cited (supra), this Tribunal has observed as under:- 14. We observe that there are two issues t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them to their group companies. The department has also not disputed the payment of service tax by ABMCPL under the category of BSS. 12. The Appellant referred the Board Circular No.102/3/2009-S.T. dated 23.02.2009 and TRU s Letter No.334/4/2006-TRU, dated 28.02.2006 which clarified the scope of BSS. As per the Board Circular cited above, services which are in the nature of assistance or support provided by the principal to the service recipient would fall under BSS. In the present case, the services rendered by ABMCPL being in the nature of support service provided to the Appellant, qualify as BSS as defined under section 65(104c) of the Finance Act, 1994.The manner of arriving at the value of services rendered would not change the nature of BSS provided by ABMCPL i.e., whether ABMCPL only recovered the expenses incurred or even charged a profit element. Section 67 of the Finance Act, 1994 provides that value of any taxable service is the gross amount charged for such service provided. It neither restricts a service provider from allocating expenses to the recipients nor mandates charging profit margins in exchange for the provision of such services. Therefore, even if ABMCPL merel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decided is whether the Appellant is eligible to avail CENVAT Credit on Mining Services received from Avian Overseas Pvt. Ltd. for the period from April 2006 to June 2011? We observe that Cenvat credit amounting to Rs.11,85,22,981/- along with interest and penalty has been confirmed in the impugned order. The Appellant submits that they are entitled to avail all input services received and used in mines in accordance with the definition of 'input services'. We observe that the services ancillary to mining of coal in the Appellant s mine was used for generation of electricity at their Captive Power Plant located in their factory at Hirakud, Sambalpur, Orissa. The said electricity is supplied to their manufacturing unit for use in manufacture of dutiable goods. Thus, we observe that the services have intricate nexus with manufacturing of dutiable goods. The Appellant cited a plethora of decisions in support of their contention that the input services used in captive mines are available as credit to the manufacturing unit. 17. In the case of India Cements Ltd. v. CCE, Guntur, 2016 (45) S.T.R. 557 (Tri. Hyd.), the tribunal has held that the input services used in captive mines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertaken by the Appellant. Thus, we hold that the impugned order demanding reversal of such credit along with interest and penalty is not sustainable and accordingly, we set aside the same. 20. Regarding the grounds taken by the adjudicating authority to confirm the demands in the impugned order, we observe that the adjudicating authority has observed that AOPL was providing site formation services and not mining services . Hence, it has no nexus with the manufacturing process of excisable goods. We observe that the classification of service as either mining service or ancillary to mining service or site formation services is not relevant to determine the eligibility to Cenvat credit on the subject services, inasmuch as the services are used in the mines, coal extracted wherefrom has been used in their manufacturing unit. Accordingly, we hold that the demands cannot be confirmed on this ground. The adjudicating authority has also observed that AOPL issued the invoices on the Appellant s mines and not the factory address/ registered premise. On these ground the credit availed by the Appellant was denied. We observe that even if such invoices were addressed to the mines, the Cenvat cr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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