TaxTMI 
TaxTMI 
2010 (8) TMI 229
X X X X Extracts X X X X
X X X X Extracts X X X X
....nce service in the factory premises during the period November, 2005 to October, 2007 and November, 2007 to October 2008. The lower authorities were of the view that such credits availed by the assessee are ineligible and coming to such conclusion, show cause notices were issued. The adjudicating authority after considering the submissions made by the assessee before him, confirmed the demands raised in show cause notices and also imposed penalties. Aggrieved by such orders, the assessee preferred appeals before the ld. Commissioner (Appeals). Ld. Commissioner (Appeals) vide impugned orders has remanded the matters back to the adjudicating authority to look into the aspect whether the Garden maintenance is in respect of aesthetic value and is requirement of the law i.e. Pollution Control Board's directives. Aggrieved by such orders, the Revenue has filed these appeals. 4. Ld. DR would submit that the orders of the ld. Commissioner (Appeals) is incorrect as the credits availed of the service tax paid on the input services need to be read as per the definition of Rule 2(l) of Cenvat Credit Rules, 2004. It is his submission that garden services are not linked either directly or ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ble to avail the Cenvat Credit of the service tax paid by them on the garden maintenance service. 8. On perusal of the records, I find that the assessee is manufacturing the items "Hydraulic Couplings". For manufacture of these items they had to take the consent order from the Andhra Pradesh Pollution Control Board, Zonal Office,Hyderabad. It is seen that vide consent order No. APPCB/HYD/KTN/ 195/RO/W/2006/71-718, dated 23-6-2006, the Pollution Control Board has given consent to the assessee under Section 25/26 of the Water (Prevention & Control of Pollution) Act, 1974 and the rules and orders made thereunder on the condition that assessee fulfills the conditions in annexure and discharge of domestic effluent shall be only on the land within the factory premises of the assessee subject to the terms and conditions incorporated in the Schedule 'A' and Schedule 'B' enclosed with the consent order. On perusal of the clause 7 of the Schedule A of the said consent order, I find that the assessee had been advised to develop a green belt around the factory by planting variety of trees in an area atleast 4 times the builtup area. I find that the ld. Commissioner (Appeals) has tried to....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... laid down by them as reproduced herein above. It can be seen from the above reproduced conditions, specifically condition No. 3 that the appellant is required to treat the trade and domestic effluents (industrial and domestic effluents) to the prescribed standards and utilize the same into on land for irrigation i.e. gardening within the plant premises. It would indicate that the treated water from their plant has to be used by the appellant within the plant premises in order to adhere the condition laid down by the KSPCB, failing which the consent given to them would have been in jeopardy. 7.1 On this factual matrix, I find that the appellant has availed the services of garden maintenance from a person, who paid the service tax. The service tax paid on the said services can be availed as Cenvat credit as the creation and maintenance of garden within the factory premises was mandatory requirement as per the order of the KSPCB. I find that the Hon'ble High Court of Bombay in the case of Coca Cola India Pvt. Ltd. (supra) had laid down the criteria for availing of Cenvat credit of the service tax paid on the services. In para 39 of the said judgment, their Lordships while inter....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ticular category of an income of a co-operative society is exempt from tax what has to be seen is whether income fell within any of the several heads of exemption. If it fell within any one head of exemption, it would be free from tax notwithstanding that the conditions of another head of exemption are not satisfied and such income is not free from tax under that head of exemption." 7.2 It can be noted from the above reproduced ratio of the judgment of the Hon'ble High Court, that any service used by the manufacturer whether directly or indirectly in or in relation for the clearance of final product from the place of manufacture would be eligible for the Cenvat credit on the service tax paid on the services. As has already been reproduced by me hereinabove, that the appellant is statutorily bound to maintain the garden within the factory premises in order to manufacture and clear the final products as per the requirement of KSPCB, the services which are engaged by appellant would be covered under the definition of "Manpower supply" as an infrastructure required for the manufacture and clearance of final products. I find that the said ratio has been followed by this very Bench....