TaxTMI 
TaxTMI 
2016 (3) TMI 1044
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....2015 allowed the appeal for the subsequent period from Oct. 2010 to Feb. 2011. 3. On the other hand, the Ld Authorised Representative on behalf of the Revenue submits that all the issues in the present appeal is not covered by the earlier order. In this context, the Ld Authorised Representative for the Revenue drew the attention of the Bench the relevant portion of the Adjudication order. 4. On perusal of the Adjudication order, we find that the first issue is, the denial of Cenvat Credit on Input and Capital Goods availed on construction of dry dock. The next issue is denial of cenvat credit on input, capital goods and on input service used in the manufacture of finished goods viz., Ship classifiable under heading No. 89.01 of the schedule to the Central Excise Tariff Act 1985. Further, there is allegation of availment of Cenvat Credit on the basis of the photo copy of the invoices. The Learned Authorised Representative submits that the Tribunal, while passing order dtd 30.4.2015 had not considered that the inputs used in the Ship cannot be admissible for Cenvat Credit. 5. For the proper appreciation of the case, we reproduce below the relevant portion of the earlier Fina....
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....on "any service" read with "for providing an output service" would cover wide encompass of the definition of input service. The Hon'ble Supreme Court in the case of Indian Chamber of Commerce (AIR 1976 SC 348) observed that the expression" for has to be interpreted as "for the purpose of". CBEC Circular No.120/01/2010-ST, dt.19.01.2010, clarified that the definition of input service qua a manufacturer and provider of output service. In our considered view, CENVAT Credit availed on input service, input and capital goods for setting up Dry Dock would be allowed for providing output service namely repair/refit service. This is also covered in the inclusive part of the definition of input service. Hence, the finding of the Adjudicating authority, is that the Appellant is exclusively engaged in the manufacture of exempted final product Ship, and CENVAT Credit on input, capital goods is inadmissible, cannot be sustainable. 8. The learned Authorised Representative contended that there is no requirement of furnishing the bond by an EOU and it does not cover under Rule 6(6) of the Rules. CBEC by Circular No.928/18/2010-CX, dt.28.06.2010, clarified that a 100% EOU are required to ex....
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....to the above said grounds urged in this appeal, we have carefully examined the same to find out as to whether the aforesaid substantial question of law would arise or not for our consideration in this Appeal. The CESTAT, having regard to the undisputed fact that the respondent is 100% Export Oriented Unit (for short ECU") in respect of which, benefit of CENVAT Credit Rules, 2004 is available for the inputs which will be used for manufactured goods of 100% export. Therefore, the Tribunal has applied Rule 6(6) and recorded the reasons stating that there is a provision of exporting the goods under bond. In the case of 100% EOUs, the input can be imported free of duty and they can obtain indigenously also free of duty. When duty is paid on the inputs, then the appellants are entitled for the Cenvat credit facility under the Rules Cenvat Credit Rules. There is nothing in the Rules which prohibits 100% EOUs availing Cenvat credit. Rule 5 of the said Rules provides for refund of Cenvat credit availed by the exporter where they do not utilize the goods as inputs for manufacture of 100% export. The case on hand is the precise case wherein the respondent has availed the Cenvat credit facil....
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....oods, if the goods were exported. In view of the above discussion, the contention of the learned Authorised Representative for the Revenue is that there is no requirement of furnishing of Bond by 100% EOU, is not admissible. 11. As revealed from the Adjudication order that input service credit was denied mainly on the basis that the input service credit availed on the input services was shown in ER-1 return instead of ST-3 returns. The relevant portion of the Adjudication order is reproduced below:- "12.2.5 In the instant case, the Noticee has shown the CENVAT Credit availed on "input services" in their ER-2 return indicating that those services have been used by them in or in relation to manufacture of final products whether directly or indirectly. Had those services been used for providing output services", the Noticee would have shown the CENVAT Credit of Service Tax paid on such "input services" in their respective ST-3 returns. As already discussed, the criteria to qualify the services used as "input service" are different in case of Manufacturer and Output Service Provider. Therefore, if the service received were qualified as input service" for providing out....
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.... the case of Commissioner of Central Excise, Salem Vs Thangavel & Sons (P) Ltd. - 2014 (7) 895-CESTAT Chennai, the Tribunal held that the Respondents are not only the manufacturers of excisable goods, but also the provider of output service and both the activities are carried out in the same premises. Respondents are eligible for availment of input credit, they can utilise the CENVAT credit available with them either for payment of excise duty on the final products or for payment of service tax on the output services as stipulated in sub-rule (4) of Rule 3 of CENVAT Credit Rules, 2004. The restriction on utilisation of CENVAT Credit stipulated relates only for specific type of duties i.e. education cess on excisable goods or payment of education cess on output service. There is no restriction for utilisation of common input credit availed on the inputs and also on input service for payment of excise duty or service tax. Hence, we do not find any reason to deny the input service credit on the ground that it was shown in the ER-1 return. 14. The Adjudicating authority denied CENVAT Credit on capital goods, being inadmissible used in immovable property come into existence. We....