2018 (12) TMI 1477

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....ing under CSH 2523 2910 of the First Schedule of Central Excise Tariff Act, 1985. During the course of audit on the records of the appellant for the period July 2011 to April 2012 by the internal audit wing, it was observed that the appellant have irregularly availed service tax credit on construction service i.e., alteration and extension of railway track to the extent of Rs. 31,26,399/- and locomotive engine servicing charges amounting to Rs. 4,740/- during the February 2012 and March 2012. The said services are not covered under the definition of input service and are specifically excluded. In this regard, statement of Shri Shrikant Kiniklar, Manager of the unit was recorded who inter alia stated that the entry in the ER-1 returns regard....

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....ts and the law. He further submitted that the exclusion clause A(a) of Rule 2(l) excludes execution of work contract for building or civil structures and not all types of work contract. He further submitted that the appellant in the present case has availed the services of a contractor for alteration and extension of railway track which is neither a building nor a civil structure and therefore, the railway track and siding construction of railway siding civil work is not covered under the exclusion clause. He also submitted that the service provider has merely provided manpower for carrying out the required alteration and extension work i.e., dismantling the tracks, linking the tracks, packing the tracks, aligning the tracks, cutting to the....

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....: 2015 (319) ELT 247 (SC) • Ultratech Cement Ltd. vs. CCE, Nagpur: 2018-TIOL-594-CESTAT-MUM. • RSWM Ltd. vs. CCE, Jaipur: 2015 (37) STR 1074 4.1 He also submitted that this issue is no more res integra and has been decided by various decisions of the Tribunal wherein the Tribunal has allowed the credit on railway siding work. For this submission, he has relied upon the following decisions: • Orient Cement Ltd. vs. CCE: 2017 (51) STR 459 (Tri.-Hyd.) • The India Cement Ltd. vs. CCE, Chennai: 2018-VIL-426-CESTAT-CHE-CE • CCE, Raipur vs. Vimla Infrastructure India P. Ltd.: 2018 (13) G.S.T.L. 57 (Chhattisgarh) • Jaypee Rewa Plant vs. CCE, Jabalpur: 2018 (9) TMI 633-....

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....ibunal in the case of Jaypee Rewa Plant cited supra wherein the Tribunal has considered various decisions and has held as under: "The definition of 'capital goods' as well as 'inputs' mandate the usage of goods within the factory. It has been held in a catena of judgment that where pipelines, rope-ways and other material handling equipment and their parts are partially located within factory and partially outside, then the portion which is outside the factory has been treated as an extension of the portion which is inside the factory. Accordingly, the condition of 'used in factory' gets satisfied and the CENVAT credit is admissible. Thus, the railway track laid by the appellant (which connects the railway siding outside the factory wi....

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....ng or a civil structure nor in relation to laying of foundation or making structures for support of capital goods. On the contrary, the present services are for laying of railway tracks, which per se are capital goods, thus, the present services are in relation to the installation of capital goods only. Thus, the exclusion under sub-clause (A) of the Rule 2(l) does not apply to the instant case. Thus, the appellant has correctly availed the CENVAT Credit on the works contract services for laying the railway lines. 6. Accordingly, we allow the appeal." 6.1 Further, in the case of Orient Cement Ltd. cited supra, the Division Bench of the Tribunal has held in para 7 as under: "7. From the discussions and observations made in ....