TaxTMI 
TaxTMI 
2012 (11) TMI 241
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....g unit at Raigad. The appellant availed certain services at their wind mill farm at Satara and took credit of the service tax paid on such services at their factory at Raigad amounting to Rs. 2,17,882/-. Accordingly, a show cause notice dated 28/02/2008 was issued to the appellant for taking CENVAT credit on the services availed at Satara in the wind mill farm on the ground that such services are not 'input service' for the manufacture of goods at the Raigad unit and hence they are not entitled for the same. The case was adjudicated by the jurisdictional Assistant Commissioner, who confirmed the demand of Rs. 2,17,882/- under Rule 14 of the CENVAT Credit Rules, 2004 read with Section 11A of the Central Excise Act, 1944 and also ordered for recovery of interest under Section 11AB ibid. He further imposed equivalent penalty under Section 11AC read with Rule 15 of the CENVAT Credit Rules. The appellant preferred an appeal before the lower appellate authority, who vide the impugned order, rejected their appeals on the basis of the judgment of this Tribunal in the case of Rajhans Metals (P) Ltd. reported in 2007 (8) STR 498 (Tri-Ahmd). Hence the appellant are before us. 3. The learne....
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....ner of Central Excise vs. DNH Spinners 2009 (16) STR 418 (T) 3. L.G. Balakrishnan & Bros. 2009 (13) STR 619 (T) 4. L.G. Balakrishnan & Bros. 2009 (20) STR 48(T) 5. Commissioner of Central Excise vs. Ultratech Cement 6. Commissioner of Central Excise vs. Ultratech Cement 3.2 The learned counsel further submits that when there are conflicting decisions among various benches of the Tribunal then unconditional stay should be granted and relies on the following decision: 1. Binani Zinc Ltd. - 1995 (77) ELT 514 (Ker.) 2. Essen Multipack - 2003 (58) RLT 86 (T) 3. Tiki Tar Industries - 2007 (78) RLT 233 (T) 4. Fuji Electronics - 1995 (77) ELT 567 (T) 5. Sirocco Pressing Pvt. Ltd. 2002 (142) ELT 704 (T) 6. Hindustan Lever Ltd. 2007 (219) ELT 613 (T) 4. The learned AR on the other hand submits that this Tribunal in the case of Rajhans Metals (p) Ltd. (supra); Ellora Times Ltd. & Ajanta Transistor Clock Mfg.(supra); Rajshanti Metals Pvt. Ltd. (supra) and Meghdev Enterpri....
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....n the instant case, the service have been availed at the wind mill farm, which is situated at a long distance away from the manufacturing unit and the service so availed relates to the maintenance of wind mill equipment, security services at the wind mill farm, etc. The wind mill generates electricity which is a non-excisable item and such electricity is supplied to the State Electricity Grid and is not captively consumed. No doubt, an equal quantity of electricity is made available to the manufacturing unit at Raigad. It cannot be, therefore, said that the electricity generated at Satara has been captively consumed in the manufacture of excisable goods at the factory in Raigad. Under the CENVAT Credit Rules, CENVAT credit is not available in respect of capital goods which are installed at premises which are not part of the factory; if services are availed in respect of capital goods which themselves are not entitled for CENVAT credit, how can the services rendered in respect of such capital goods be considered as an 'input service' at all? In other words, to be eligible for CENVAT credit two conditions needs to be satisfied: firstly the service should be an input service and such ....
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....vt. Ltd. (supra) are Single Member Bench decisions, hence those decisions are not binding on this Bench which is a Division Bench. But I find, in the case of Rajhans Metals Pvt. Ltd., Rajshanti Metals Pvt. Ltd., and Ellora Times Ltd. are also the decision of the Single Member Bench of this Tribunal and same are appealed against and pending before the Hon'ble High Court of Gujarat for decision on the issue. Therefore, prima facie the appellant has made out a case for waiver of pre-deposit as balance of convenience lies in their favour. Moreover, in the case of Crompton Greaves in stay application No. E/S/2048/10 vide order No. S/964/11/EB/C-II dated 20.12.2011 wherein in the case of BDH Industries Ltd. - 2008 (229) ELT 364 (Tri. - LB) the Larger Bench of this Tribunal held against the appellant and the said order has been challenged by the assessee before the Hon'ble High Court of Bombay and the decision is pending. In that case this Tribunal has been granted unconditional waiver of pre-deposit. Therefore, following the precedent of the decision in the case of Crompton Greaves (supra), I am of the view that the appellant is required to be treated on the same footing by granting waiv....