TaxTMI 
TaxTMI 
2017 (6) TMI 106
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..... 2. Both sides represented by the Ld. Counsels, Shri Hemant Bajaj and Shri Sanjay Jain have been heard. 3. The facts of the case and submissions of both the sides have been carefully considered. 4. The appellant is pleading for allowing the cenvat credit both on input raw material (goods) as well as on the input services namely, eraction/ commissioning services used for installation /commissioning of power transmission towers/ lines which are input material. 4.1. The issue of admissibility of Cenvat credit on transmission towers and spares/ parts of said towers is covered by the Tribunal's decision in case of Prism Cement Ltd. Vs CCE and ST Bhopal decided by Final Order No.52521/2017- TX (DB) in appeal no E/4056/2012-EX (DB). The Tribu....
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.... eligible only on the ground that these goods are removable is against the law as settled by the Hon'ble High Court of Gujarat in the case of Mundra Ports and Special Economic Zone Ltd. (Supra). In that case, the Tribunal had denied the Cenvat Credit on the steel and cement used in the construction of jetty which is used for providing port services / cargo holding services after considering the entire law on the subject, the Hon'ble High court in para 7 held as under: "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 Couns....
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....d within the port area and the appellant is a service provider. According to the appellant, his case is squarely covered by the judgment of the Division Bench of the Andhra Pradesh High Court in Commissioner of Central Excise, Visakhapatnam-II v. Sai Sahmita Storages (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 ....
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....iron and articles were used as supporting structurals, they would not be eligible for the credit. Considering the amendment made w.e.f. 07.07.2009 as a clarification amendment and hence to be considered retrospectively. However, we find that the said decision of the Larger Bench was considered by the Hon'ble Gujarat High Court in the case of Mundra Ports & Special Economic Zone Ltd., 2015 (04) LCX0197, wherein ti was observed that the amendment made on 07.07.2009 cannot be held to be clarificatory and as such would be applicable only prospectively. 15. We find that the controversy can be laid to rest by making a reference to the decision of the Apex Court in the case of CCE, Jaipur vs Rajasthan Spinning & Weaving Mills Ltd., 2010 (255....
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....s contemplated under Rule 2(a) of the Cenvat Credit Rules, hence will be entitled to the Cenvat Credit." 10. The adjudicating authority has also held that the transmission lines which is laid down by the appellant is bringing electricity from Sitpura which is situated 32 kms away from the factory premises and is not within the factory premises. Hence the Cenvat Credit is inadmissible. We find that similar issue cropped up before the Tribunal in the case of CCE Chennai Vs. Pepsico India Holdings Ltd. 2001 (130) ELT 193 (Tri-Chennai). In that case, the respondent therein availed Cenvat Credit on PVC pipes which is used for drawing water from the well situated away from factory premises. The Tribunal held that since the PVC pipes are used ex....