Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  GST registration cancellation without reasons amounts to ‘Economic Death’ of business: Supreme Court. *  No GST refund if appeal before GSTAT is filed late: Gujarat High Court. *  Mere upload of GST notice on portal not valid service, appeal limitation won’t start: Punjab & Haryana High Court. *  Taxpayer can’t be penalised for missing notices hidden under ‘Additional Notices/Orders’: Calcutta High Court allows fresh adjudication. *  State tax officer can’t issue GST SCN beyond CBIC-assigned jurisdiction: Bombay High Court stays recovery proceedings. *  Earlier 7.5% Pre-Deposit must count towards mandatory 10% for Appeal: Uttarakhand high court quashes CESTAT Order. *  Third Parties can’t challenge GST Advance Rulings merely due to financial impact: Karnataka HC *  GST SCN generated using AI tool quashed: Punjab & Haryana High Court *  Bank Attachment Quashed as Madras HC Quashes GST Order Issued Against Deceased Person *  ITC Blocking Order for Failure to Record ‘Reason to Believe’ U/R 86A Quashed: Allahabad High Court *  Govt Extends GSTAT Appeal Filing Deadline From 30 June to July 31, 2026 *  GST Demand on RWA Stayed: Allahabad High Court Questions Taxability of Electricity Distribution to Flat Owners *  CBIC Clarifies Jurisdiction After GST Registration Transfer: Earlier Proceedings Remain Valid, New Officer to Continue Action *  GST authorities’ certification not mandatory for reimbursement, but tax payment must be proven: Karnataka HC *  Contractor can’t seek gst reimbursement through writ when contract has arbitration clause: Karnataka HC *  Unsigned Order Is No Order in Law: AP HC Quashes GST Assessment Order for Want of Officer’s Signature *  Customs Can’t Levy Rs. 1.36 Crore Cost Recovery Charges Without Proof of Full-Day Officer Deployment: CESTAT  *  12% IGST Payable On Imported Dialysis Machine Parts: CESTAT *  Bombay High Court Admits Challenge to GST Limitation Extension Notifications; Grants Protection Against Coercive Recovery *  Criminal Case Can’t Run Parallel to GST Proceedings on Same Facts: Allahabad High Court *  Allahabad High Court Stays GST Detention Order; Directs Release of Vehicle and Goods on Deposit of Rs. 1.44 Lakh *  Service Tax Can’t Be Levied on Loss-Making Contracts: Gujarat High Court *  GSTN Mandates Ship-to GSTIN in e-Invoice and e-Way Bill APIs; Introduces Voluntary e-Way Bill Closure Facility from August 1, 2026 *  GST Appeal Can’t Be Rejected as Time-Barred When Taxpayer Was Pursuing Rectification Remedy: Telangana High Court *  Absence of E-Way Bill and Transport Documents Justifies Customs Seizure U/s 110: Gauhati HC *  Madras High Court Upholds GST Late Fee and Penalty for Non-Filing of Annual Return, Dismisses Challenge  *  GST Records, Purchase Documents Sufficient to Discharge Burden Under Customs Act: CESTAT Orders Release of 3.65 Kg Gold  *  No Sugar Cess Payable on Sugar Exported Out of India: CESTAT *  Road Construction Services Exempt and SCN Time-Barred: CESTAT Quashes Service Tax Demand Based Solely on Form 26AS  *  ITC Freeze Upheld After GST Dept Find Suppliers Were Allegedly Fake Bill-Trading Entities: Madras HC 
Subject News *  Input service benefits can’t be denied: CESTAT allows export refund despite MMTC acting as Canalising agency. *  No service tax demand without proof of service of SCN: CESTAT. *  Service tax demand quashed as dept. fails to prove service of SCN: CESTAT *  GST : Mere allegation of inadequate consideration of reply not enough to invoke writ jurisdiction: Delhi High Court *  Onerous conditions imposed for provisional release of seized imported goods shouldn’t amount to virtual denial of relief: CESTAT. *  GST SCN without alleging fraud cannot invoke sec. 74: Karnataka High Court quashes adjudication order. *  Extended Limitation Can’t Be Invoked Merely on Form 26AS Data: CESTAT *  Revenue-Sharing with Restaurants Not Taxable as Business Support Service: CESTAT *  R. 6(3) Option Can’t Be Forced on Taxpayer; CESTAT Quashes Rs. 12.36 Crore CENVAT Credit Demand *  Excise Duty | Power Consumption Alone Can’t Prove Clandestine Manufacture: Karnataka High Court *  Madras High Court Examines DGGI’s Authority to Issue GST Penalty Orders Under Section 122, Adds DGGI as Party *  Proceedings under omitted r. 96(10) can’t survive without saving clause: andhra pradesh high court quashes gst refund recovery *  Excise duty power consumption alone can’t prove clandestine manufacture: karnataka high court *  Madras high court rules GST show cause notices must disclose grounds for invoking extended limitation *  Court Can’t Direct Extension GST Return Deadlines or Waive Interest and Penalties: Karnataka High Court *  GST Notifications Can’t Go Beyond GST Council Recommendations: Madras High Court Quashes SCN on Branded Pulses *  Appeal Can’t Be Dismissed for Delay When Dept’s Own Order Mis-states Limitation Period: CESTAT *  No Evidence of KYC or Due Diligence Breach By Customs Broker: CESTAT Quashes Licence Revocation in Export Overvaluation Case *  Glucometers Are Chemical Analysis Instruments Classifiable Under Tariff Heading 9027: CESTAT *  Validity of Post-GST Service Tax Proceedings Upheld: Gujarat High Court Dismisses Challenge to S. 73 SCN *  Rectified GST Refund Applications Can’t Be Rejected as Time-Barred If Original Refund Claim Was Filed Within Limitation: Gujarat HC *  Service Tax Refund Can’t Be Denied as Time-Barred When Levy Itself Is Unconstitutional: Gujarat High Court *  Same Officer Can’t Act As Auditor & Adjudicator: Karnataka High Court *  Karnataka High Court Condones 324-Day Delay, Revives Customs Appeal in Jewellery Pilferage Case  *  Madras High Court Quashes GST Assessment Order Passed Ex Parte Despite Prior ITC Reversal; Lifts Bank Attachment *  Tobacco Process Doesn’t Amount to Manufacturing: Madras High Court Quashes Rs. 1.32 Crore Compensation Cess Demand  *  Recovery Notice Unsustainable After Voluntary Reversal of Unutilised Credit: CESTAT  *  GST | ‘System Generated’ SCN Without Officer Details Invalid: Allahabad HC  *  Electronic Records Without Statutory Certification Requirements Can’t Justify Undervaluation Allegations: CESTAT *  Madras High Court Stays GST Order, Finds Prima Facie Merit in Plea Against S. 74 Proceedings Based on S. 73 Intimation  

Comments

Print   |    |  Comment

PJ/Case Laws/2012-13/1151

Whether credit of service tax paid on repair of wind mill is available?
Case:  RAJRATAN GLOBAL WIRES LTD v/s COMMISSIONER OF CENTRAL EXCISE, INDORE
 
           ORISSA CONCRETE & ALLIED INDUSTRIES LTD v/s COMMISSIONER OF CENTRAL EXCISE, RAIPUR
 
 
Citation: 2012-TIOL-469-CESTAT-DEL
 
Issue:- Whether credit of service tax paid on repair of wind mill is available?
Brief Facts: - In the case of M/s Rajratan Global Wires Ltd., the appellant manufacture stranded wire in their factory at Pitampur (M.P.) and they receive electricity for this factory from their wind mill at Dewas through wheeling arrangement in terms of their agreement with M.P. State Electricity Board. In the case of M/s Orissa Concrete & Allied Industries Ltd., the appellant's factory located at Raipur receives electricity their wind mill at Dewas, through wheeling arrangement in terms of their agreement with the electricity board. In both the cases, the appellant in respect of their wind mills in Dewas availed the services of erection, installation and commissioning, repair and maintenance and also insurance and took Cenvat credit of the service tax paid on these services. The department was of the view since the wind mills are located far away from the factory and the power generated by the wind mill is not directly received in the factories of the appellants, the appellants would not be eligible for Cenvat credit. On this basis, the show cause notices were issued to the appellants for denying the Cenvat credit, its recovery along with interest and imposition of penalty on them. The original Adjudicating Authority confirmed the Cenvat credit demands along with interest and imposed penalty. The orders of the original Adjudicating Authority were upheld by the Commissioner (Appeals). Against these orders of the Commissioner (Appeals), these two appeals have been filed.
 
Appellant’s Contention: - The appellant M/s Orissa Concrete & Allied Industries Ltd. and M/s Rajratan Global Wires Ltd., pleaded that the they had established the wind mills at Dewas as captive power plant for generation of electricity for use in their respective factories, that since the power generated by the wind mill, could not be directly supplied to the factories, they entered into an agreement with M.P. State Electricity Board under which the electricity generated by the wind mill was to be supplied to M.P. Electricity Grid and the M.P. State Electricity Board was to supply 98% of electricity to the appellants after deducting 2% wheeling charges, that the letter dated 26/9/96 of M/s Orissa Concrete & Allied Industries Ltd. to the M.P. State Electricity Board itself shows that the appellant sought permission for installation and running of wind mill, generator at Dewas for captive use and the permission granted by the electricity board was also for generation of electricity by the wind mill for the captive use of the appellant, that this is not the case where the electricity generated by the appellants was sold to the electricity board and the appellants, thereafter, purchased electricity from the electricity board, that though the appellant's agreements with M.P. Electricity Board are titled "Power Purchase Agreement", from the perusal of the agreements, it will be clear that these are the agreements for transmission of the electricity generated by the wind mill after deducting 2% wheeling charges, that the services for erection, installation and maintenance of the wind mills have direct nexus with the manufacture of the final products by them, as the electricity generated by the wind mill has been used for manufacture of the final product, that there is no provision in the Cenvat Credit Rules, 2004, that the input service has to be used within the factory premises, that Tribunal in the case of Endurance Technologies Pvt. Ltd. vs. CCE, Aurangabad reported in 2011-TIOL-1045-CESTAT-MUM and in the case of Maharashtra Seamless Ltd. vs. CCE, Raigad reported in 2011-TIOL-1059-CESTAT-MUM has held that when the electricity is produced in the wind mill, which is situated far away from the factory and the electricity is transferred to the State Electricity Board grid which, in turn, supplies the electricity to the appellant's factory, the services used for such wind mill are to be treated input services and Cenvat credit of Service Tax paid on such inputs services would be available, that though then Tribunal in the case of Rajhans Metals Pvt. Ltd. vs. CCE, Rajkot reported in 2007 (8) S.T.R. – 498 (Ahmd.) = (2007-TIOL-1491-CESTAT-AHM) has taken a contrary review, this judgment of the Tribunal has been discussed by the Tribunal in the case of Maharashtra Seamless Ltd. vs. CCE, Raigad (supra) and the Tribunal has not agreed with the view on the ground that the judgment of the Hon'ble Bombay High Court in the case of CCE vs. Ultratech Cement Ltd. reported in 2010 (20) S.T.R. 577 (Bom.) = (2010-TIOL-745-HC-MUM-ST) was not considered, and that in view of this, the impugned orders are not correct.
 
Respondent’s Contention: - The respondent defended the impugned order by reiterating the findings of the Commissioner (Appeals) and pleaded that the Tribunal in the case of Rajhans Metals Pvt. Ltd. vs. CCE, Rajkot (supra) and also in the case of Atul Auto Ltd. vs. CCE, Rajkot reported in 2009 (237) E.L.T. 102 (Tri. - Ahmd.) has taken a contrary view and has held that when electricity generated by wind mill situated far away from factory premises is transferred to independent State Government company and equivalent quantum of electricity is supplied to the factory from that State Government company, the services of repair and maintenance etc. used in respect of the wind mill cannot be treated as input service. He also pleaded that electricity generated by the wind mill has not been directly used in the factories of the appellants and for this reason also, the services used in the wind mills cannot be treated as input services for the appellant. He, therefore, pleaded that there is no infirmity in the impugned orders.
 
Reasoning of Judgment: -The Hon’ble CESTAT held that there is no dispute about the fact that if the inputs are used or if input services are availed in respect of a captive power plant situated within the factory or adjacent to the factory, Cenvat credit would be available. But if the captive power plant happens to be wind power generator, it may not be always possible to locate the same in the close vicinity of the factory, as the wind power Generators have to be located at the places where the wind with sufficient speed is available throughout the year. In this case, though the factories of the appellant are located at Raipur and Pitampur, since they have chosen to use electricity generated by their captive wind power generators, the wind mills are situated in Dewas. These wind mills have been established with the permission of the M.P. State Electricity Board and from the permission given by the M.P. State Electricity Board it is seen that the wind mills are mentioned as for captive use by the appellant. Since, the wind mills are located far away from the factories, the power cannot be transmitted directly and the appellant would necessarily have to enter into an agreement with the State Electricity Board for its transmission. In both these cases, it is seen that the appellant had entered into the agreements with the M.P. State Electricity Board for transmission of power under which the electricity generated by the wind mills is first transferred to the M.P. Electricity grid and, thereafter, the M.P. State Electricity Board supplies 98% of that power to the appellants after deducting 2% power as wheeling charges. In view of this, they held that the wind mills in this case have to be treated as captive power plant and hence the services of erection, installation, commissioning, repair and maintenance and insurance used in respect of the wind mills would be eligible for Cenvat credit. Moreover one of the main factors for deciding the question as to whether Cenvat credit is available in respect of the service used by a manufacturer is as to whether the service received has nexus with the manufacture of the final product or with the business of manufacture and in this case, they find that there is clear nexus as the electricity generated by the wind mills has been used for running of the factories of the appellant and just because the electricity has not been directly supplied, but has been supplied through M.P. Electricity grid, it cannot be said that the wind mills are not captive power plant. He find that same view has been taken by the Tribunal in the case of Maharashtra Seamless Ltd. vs. CCE, Raigad (supra) and Endurance Technologies Pvt. Ltd. vs. CCE, Aurangabad (supra). In the first judgment, the Tribunal has also discussed the judgment of Tribunal in the case of Rajhans Metals Pvt. Ltd. vs. CCE, Rajkot (supra), where a contrary view had been taken and has observed that view taken in that judgment is not correct.
 
Decision: - The appeals were allowed.
Comment:- This issue has contradictory decisions. Some says that the credit will be allowed while others say that the credit is admissible. The analogy for not allowing the cenvat credit is that the same electricity is not being allowed. The wind mill owner generate the electricity and give it to state electricity board and then board give the other electricity to factory of manufacture free of charge after deducting the process loss. Hence, ultimately, it is expenditure related to business only. But the litigation does not end and it will continue.
Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com