TaxTMI 
TaxTMI 
TaxTMI 
2019 (3) TMI 860
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....n applying the amended provision under Rule 3(5) of CCR which came into effect from 01.04.2008 for the period prior to that date?" 3.Heard Mr.V.Sundareswaran, learned Standing Counsel for the appellant; and Mr.T.Ravikumar, learned Senior Standing Counsel for the respondent. 4.The learned counsel on either side submitted that the substantial questions of arising for consideration in these cases were considered by us in the case of Commissioner of Central Excise and Service Tax vs. M/s.Ashok Leyland Ltd. [C.M.A.Nos.352 of 2016 and etc., batch: dated 06.12.2018] wherein though there may be slightly a factual difference in the said case, the legal issue is one and the same. The operative portions of the judgment read as follows:- "7.The assessee submitted their objections discussing about the importance of wind energy in the State, the necessity to locate the windmills outside the factory area, etc. The assessee also referred to the agreement entered into with the TNEB and stated that those agreements were entered into only for the purpose of utilizing the power generated by windmills for consumption at the factory in the manufacturing locations, which are connected through TNEB....
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....al. Before the Tribunal, all the cases were heard together and the Tribunal placed reliance on the decision of the High Court of Bombay in the case of C.C.E. & Cus., Aurangabad vs. Endurance Technology Pvt. Ltd., 2017 (52) S.T.R. 361 (Bom.) and held that credit is admissible in the nature of transaction done by the assessee. Further, the Tribunal recorded a factual finding that in the absence of any material on record showing energy generated by windmills was used for the purpose other than manufacture or providing of service, all the appeals were allowed. The Tribunal also set aside the interest levied and the penalty imposed. 10.We have heard Mr.A.P.Srinivas, learned Senior Standing Counsel for the appellant/Revenue, Mr.P.R.Renganath, learned counsel for M/s.Ashok Leyland Ltd., and M/s.L.Maithili, learned counsel appearing for M/s.ITC Ltd. 11.The Tribunal in the impugned order has followed the decision of the High Court of Bombay in Endurance Technology Pvt. Ltd., (supra). The said decision has attained finality, as the Revenue has not preferred any appeal, and it appears that refund was also granted to the said assessee. Therefore, the decision would bind the Department. N....
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....h Court can entertain an appeal against the order of Tribunal, if it is satisfied that the case involves a substantial question of law. Sub-Section 3 empowers the High Court to formulate a substantial questions of law, if the same is involved and the appeal shall be heard only on the question so formulated. The substantial questions of law formulated in these appeals stem out of the case, which were taken for adjudication, which especially involve factual details. Therefore, we are not persuaded by the contentions raised by Mr.A.P.Srinivas to travel beyond the allegation made in the show cause notice against the assessee. If that is to be done, then it would not only amount to an exercise being without jurisdiction, but it would also violate the principles of natural justice. Furthermore, this would expand the scope of the allegation against the assessee, which cannot be done at this stage. Therefore, we will have to answer the substantial questions of law framed for consideration on the allegations, which were set out against the assessee in the show cause notice. 16.As pointed out earlier, the adjudicating authority did not dispute the fact that the assessee had drawn equal q....
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....e, the adjudicating authority does not dispute the fact that equivalent quantity, that is, the quantity generated is the same as the quantity drawn by the assessees from the TNEB grid. On the first question of law, with regard to the availment of cenvat credit on input services, the Hon'ble Supreme Court referred to the decisions of the High Court of Bombay in the case of Commissioner of Central Excise, Nagpur vs. Ultratech Cement, 2010 (20) S.T.R.589 (Bom.); Commissioner of Central Excise, Nagpur vs. Ultratech Cement Ltd., 2010 (260) E.L.T. 369 (Bom.); and Deepak Fertilizers & Petrochemicals Corporation Ltd. vs. C.C.Ex. Belapur, 2013 (32) S.T.R. 532 (Bom.). The Hon'ble Supreme Court, after taking note of the relevant rules, held that it becomes clear that management, maintenance and repair of windmills installed by the respondents is input service as defined in Clause I of Rule 2. It was held that Rules 3 and 4 provide that any input or capital goods received in the factory or any input service received for manufacture of final product would be susceptible to Cenvat credit. Further, it was held that Rule does not say that input service received by a manufacturer must be re....
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....of Central Excise, Nagpur v. Ultratech Cement Ltd. [cited supra], the Division Bench of this Court held that the definition of "input service" is very wide and covers not only services which are directly or indirectly used in or in relation to manufacture of final product but also includes various services used in relation to business of manufacture of final product. The expression "activities" in relation to business is also discussed in this judgment by referring to judgment of Apex Court. In the case of Deepak Fertilizers & Petrochemcals Corporation Ltd. v. C.C.Ex. Belapur [cited supra] the Division Bench held as under : "The definition of the expression 'input service' covers any services used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products. The words 'directly or indirectly' and 'in or in relation to' are words of width and amplitude. The subordinate legislation has advisedly used a broad and comprehensive expression while defining the expression 'input service'. Rule 2(l) initially provides that input service means any services of the description falling in subclauses (i) and (ii....
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....es not really help us in deciding the appeals. Both appeals are dismissed." 21.In Deepak Fertilizers & Petrochemicals Corporation Ltd. (supra), which has been quoted in Endurance Technology Pvt. Ltd. (supra), the contention advanced by Mr.A.P.Srinivas, was taken note of and it was held that the input services were directly or indirectly in or in relation to the manufacture of final products. 22.The decision in the case of Endurance Technology Pvt. Ltd. (supra) was followed by a Larger Bench of the Tribunal, in the case of Parry Engg. & Electronics P. Ltd. vs. C.C.E. & S.T., Ahmedabad-I, II, III, 2015 (40) S.T.R. 243 (Tri. - LB). 23.We are informed that there is a Larger Bench's decision of the Tribunal, which also has not been appealed and the said decision has attained finality. 24.The decision in the case of Maruti Suzuki Ltd. (supra) cannot be applied to the facts of the present case, as it was a case where the Court was considering as to whether electricity can be construed as an input. The facts in the case would be very important because, the allegation against the assessee therein was that they had generated electricity in their factory and wheeled out portion of....