Commissioner Of Central Excise & ... vs M/S. Grasim Industries Ltd
- CitationAppeal No.42/2010, dated 29.03.2010 passed by the Commissioner of Customs & Central Exc
Ratio decidendi
The rule this decision rests on
Service tax paid on maintenance services availed for a windmill is creditable under the Cenvat credit scheme, as such services are permissible to be availed. Where a manufacturer incurs service tax on services for planting and maintaining trees required by the Pollution Control Board to prevent pollution, that expenditure cannot be equated with maintenance of a garden, and the service tax paid on it makes the manufacturer eligible for Cenvat credit. Adjudicating and appellate authorities must record, with reference to the evidence on record, whether the impugned service was garden maintenance or plantation undertaken to comply with a regulatory direction; a finding made mechanically without regard to material facts placed before the authority is unsustainable.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.42/2010, dated 29.03.2010 passed by the Commissioner of Customs & Central Excise (Appeals), Trichirapalli]
COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, TIRUCHIRAPALLI APPELLANT
Versus
M/s. GRASIM INDUSTRIES LTD. RESPONDENT
Appearance:
For the Appellant Shri L. Paneerselvan, AC (AR)
For the Respondent Shri Raghavan Ramabhadran, Adv.
CORAM:
Honble Shri D.N. Panda, Judicial Member
Date of hearing/decision 08-07-2015
FINAL ORDER NO. 40893 / 2015
So far as the maintenance of windmill is concerned, this Bench has already decided that service availed for such maintenance make the claimant eligible to the Cenvat credit of the service tax paid. That is permissible to be availed.
2. So far as the second issue on the maintenance of garden is concerned, it is painfully noted that both the authorities below failed to record whether it was maintenance of garden or cost of plantation done by the appellant to comply to the Pollution Control Boards direction. The materials that came up in the course of argument before the Bench reveals that the respondent being a manufacturer of cement was directed by Pollution control Board to prevent pollution planting trees in its factory area.
3. Learned counsel for the respondent submits that in the reply to the show-cause notice, it was specifically brought to the notice of the authorities below that Pollution Control Board required trees to be planted to prevent pollution. That required service of contractor which suffered service tax. But the authorities did not pay any regard to such material fact to record the same. Mechanically recording that maintenance of garden was done, service tax paid was disallowed unnecessarily.
3. Learned counsel is correct to say so as above when materials on record are read. Authorities should take precautionary measure to record the material fact properly and list the same with evidence on record so that the decisions shall flow accordingly. Any recording of the fact which was not a fact shall result in mockery and that shall also result either in miscarriage of justice or prevent from justice.
4. When the material fact is planting of trees that cannot be equated with maintenance of garden. So considering that a cement factory requires planting of the trees and maintenance thereof to prevent pollution, claim of the respondent as to the service tax paid for such maintenance to make it eligible is undeniable. Accordingly, Revenue appeal is dismissed.
(Dictated and pronounced in open court)
(D.N. PANDA) JUDICIAL MEMBER
ksr 14-07-2015
DRAFT Remarks
I II III
Date of dictation 09.07.2015
Draft Order - Date of typing 12.07.2015
Fair Order Typing 14.07.2015
Date of number and date of dispatch
5 ST/00420/2010
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