Gujarat High Court
M/S Ajanta Limited vs Commissioner Of Central Excise on 13 November, 2025
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
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Reserved On : 15/10/2025
Pronounced On : 13/11/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/TAX APPEAL NO. 194 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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Approved for Reporting Yes No
✓
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M/S AJANTA LIMITED
Versus
COMMISSIONER OF CENTRAL EXCISE
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Appearance:
MR ANAND NAINAWATI(5970) for the Appellant(s) No. 1
PARAM V SHAH(9473) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1. Heard learned advocate Mr. Anand
Nainawati for the appellant and learned
advocate Mr. Param V. Shah for the
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respondent.
2. This Tax Appeal is filed under section
35G of the Central Excise Act, 1944 (For
short "the Act") arising out of the final
order dated 29.04.2008 passed by the
Customs, Excise and Service Tax Appellate
Tribunal, Ahmedabad (For short "the
Tribunal") in Appeal No.E/20/2008.
3. The appeal is admitted by this Court
vide order dated 29.01.2010 for
consideration of the following substantial
questions of law:
"(1) Whether on the facts and
circumstances of the case, the
CESTAT is correct in holding that
the services received in respect
of operation, maintenance of
captive wind mill plant are not
entitled for the Cenvat credit
under rule 2(1) of the Cenvat
Credit Rules, 2004?
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(2) Whether on the facts and
circumstances of the case, the
CESTAT is correct in rejecting the
appeal of the appellants on the
ground that in order to qualify
under the definition of input
service, the service has to be
received in the factory of
production?
(3) Whether on the facts and
circumstances of the case, the
CESTAT is correct in rejecting the
appeal of the appellants on the
ground that the services received
in respect of generation of
electricity which is used in or in
relation to the manufacture of
dutiable products, are not
entitled for Cenvat credit?"
4. Brief facts of the case are that the
appellant is a company engaged in the
manufacture of electronic products falling
under Chapters 85 and 91 of the Central
Excise Tariff Act, 1985. The products
manufactured by the appellants attract
excise duty. The appellants have its
factory at Morbi.
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5. The appellant had set up a wind farm
at village Bhogat which is approximately
225 km away from the factory premises. The
Appellant entered into an agreement with
Gujarat Electricity Board (GEB) for
transmitting the power from wind mill site
to the factory premises. As per the
arrangement with GEB, the electricity
generated at wind farm was to be supplied
to GEB which in turn supply the
electricity to the factory after deducting
wheeling charges.
6. It is the case of the appellant that
the GEB adjusts the number of units
supplied by wind farm while raising the
bills for the consumption of electricity
in the factory.
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7. For the purpose of operation and
maintenance of the wind farm located at
Bhogat, the appellant had entered into an
agreement with M/s Suzlon Energy Ltd
(hereinafter referred to as "Suzlon")
whereby the appellant received maintenance
and repair service and reimbursed the
service tax amount paid by Suzlon on such
services. The Appellant availed Cenvat
credit of such service tax amount as input
service.
8. A show cause notice dated 16.01.2006
was issued to the appellant denying the
Cenvat credit of Rs. 6,34,684/- being
availed by the appellant on the
maintenance or repair services received at
the windmill site stating that the
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services received at windmill site were
not input services inasmuch as the
electricity generated at windmill site was
not used in the manufacture of dutiable
products and the windmill farm located at
a distance from the factory of production.
The show cause notice also proposed to
impose the penalty under Rule 15 of the
Cenvat Rules.
9. In response to the show cause notice,
the appellants filed a detailed reply
contending that the services received at
wind farm qualified as input service since
such services were used directly or
directly in the manufacture of final
products. It was also contended that the
wind farm has been set up in accordance
with the policy of the State Government
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and the electricity generated at wind farm
is entirely used in the manufacture of
dutiable products. Hence the appellants
are entitled for the Cenvat credit.
10. The adjudicating authority passed the
order-in-original dated 31.08.2006 holding
that the services received at wind mill
plant are input service and the appellant
is entitled for Cenvat credit and
accordingly, the adjudicating authority
dropped the proceedings.
11. Being aggrieved by the order-in-
original, the Revenue preferred an appeal
before the Commissioner (Appeals) Rajkot
on the ground that the services received
by the appellant at windmill site is not
input services and the activity of
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producing electricity at wind mill site
and consumption of the same at the factory
are two independent activities and
therefore, the services received at wind
mill site are not the input services.
12. The respondent no.1 Commissioner
(Appeals) passed the impugned order-in-
appeal dated 28.09.2007 and allowed the
appeal of the Revenue confirming the
denial of the Cenvat credit on the input
services received at wind mill plant
relying on the judgment of the Tribunal in
case of Rajhans Limited (Final Order No.
A/2438/WZB/AHD/07 dated 07.09.2007).
13. Being aggrieved by the impugned
order-in-appeal, the appellant preferred
an appeal before the Tribunal.
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14. The Tribunal dismissed the appeal
observing as under:
"11. After a detailed
consideration of all the points
raised by both the parties, I find
no reason to differ from the two
orders already passed by this
Tribunal on the same subject in
identical situation. The apex
court's judgment in M/s.Vikram
Cement's case does not help the
appellants since the power plant
is not a captive power plant. The
Tribunal has already examined and
considered the fact that power is
delivered by electricity board
after charging wheeling charges
and decision has been taken that
credit is not admissible in such
situation. Input services have
been received in the power plant
belonging to the applicants but
the power has been delivered to
the electricity board. The
transaction of delivery of power
to the electricity board and sale
of power by the electricity board
with the assessee are two
independent transactions. The
electricity board is only giving
credit for the power received in
the grid and it does not mean that
there is a direct nexus between
the service received in the power
plant and the items manufactured
in the factory belonging to the
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appellants. In view of the totally
independent transactions unrelated
to each other and in view of the
fact that the power produced at
the wind mill and power
requirement of the factory also
need not have to be matched or
tallied, I do not think that the
appellants are eligible for the
benefit. In view of the above, I
reject the appeals filed by both
the appellants."
15. Learned advocate Mr. Anand Nainawati
appearing for the appellant submitted that
only ground on which Cenvat Credit is
denied by the respondent authorities and
as upheld by the Tribunal is that the
electricity was being generated in Wind
Mills far away from the factory premises
and as electricity is not excisable,
Cenvat Credit is not available even at the
premises of the Wind Mills.
16. It was submitted that the electricity
generated by the Wind Mills was utilised
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by the appellant in its manufacturing unit
through GEB. It was submitted that the
agreement with GEB was only for the
purpose of utilising the power generated
by the Wind Mills for consumption at
factory for manufacturing purpose which is
connected through GEB Power Grid/High
tension supply lines.
17. It was submitted that the appellant
was already paying charges for excess use
of power from GEB in addition to power
generated by the Wind Mills transmitted
through GEB power grid. It was therefore,
submitted that there is nexus between the
power generated through Wind Mills and the
goods manufactured as three activities i.e
sale, supply and consumption takes place
immediately even though place of
generation and manufacturing are different
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and therefore, the appellant is entitled
to avail the credit of service charges
incurred in relation to the Wind Mills. In
support of his submission, reliance was
placed on the following decisions:
1) Commissioner of Central Excise v.
Excel Crop Care Ltd. reported in 2018 (12)
STR 436 (Guj.).
2) C.C.E. & Cus., Aurangabad v. Endurance
Technology Pvt. Ltd. reported in 2017 (52)
S.T.R. 361 (Bom.)
3) Commissioner of C. Ex. & S.T., Chennai
v. Ashok Leyland Ltd. reported in
2019(369) E.L.T. 162 (Mad.)
4) Parry Engg. & Electronics P. Ltd. v.
C.C.E. & S.T., Ahmedabad-I,II,III reported
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in 2015(40) S.T.R. 243 (Tri.-LB)
5) Endurance Technologies P. Ltd. v.
Commr of C. Ex., Aurangabad reported in
2011 (273) E.L.T. 248 (Tri.-Mumbai)
18. It was submitted that this Court in
case of Excel Crop Care Ltd.(supra) after
considering the provisions of the Act and
the Rules and more particularly,
definition of "input service" as defined
in Rule 2(l)(i) of the Rules held that
mobile service provider, who is liable to
pay service tax and recovers the same by
adding such service tax in his bill, is
the person providing taxable service and
is rendering "output service" so as to
constitute "input service" in the hands of
respondent assesse. It was therefore,
submitted that the service tax paid by the
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appellant on the installation and erection
of the Wind Mill is required to be given
credit under the provisions of the Rules.
19. Reliance was also placed on Circular
No.97/8/2007-S.T. dated 23.08.2007 more
particularly, clause 8.3 thereof in which
doubt raised regarding the admissibility
of the Cenvat Credit on service tax paid
in respect of mobile phones was answered
to the effect that in the Rules, no
condition has been prescribed with regard
to admissibility of credit of service tax
only on telephone connection installed in
the business premises. It was therefore,
submitted that the for the electricity
utilised for manufacturing by the
appellant provided by GEB against supply
of electricity generated by Wind Mills,
the appellant was entitled to the credit
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of service tax.
20. On the other hand, learned advocate
Mr. Param V. Shah for the respondent
reiterated the contentions raised before
the Tribunal and submitted that there is
no connection between the electricity
generated at the place of installation of
Wind Mills by the appellant and the
manufacturing activity taking place at its
factory as the electricity is being
received through GEB. It was pointed out
that the electricity itself is not
excisable and therefore, service tax
credit is rightly rejected by the
Tribunal.
21. Having heard the learned advocates for
the respective parties and having
considered the facts of the case, the
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issue on hand has already been decided by
this Court by order of even date in Tax
Appeal No.1037 of 2008, wherein it has
been held as under:
"18. Having heard the learned
advocates for the respective parties
and having considered the facts of
the case, it would be germane to
refer to the relevant provisions of
the Act and the Rules.
Finance Act, 1994:
"65(29) - "commissioning and
installation agency" means any
agency providing service in
relation to erection,
commissioning or installation."
"(39a) "erection, commissioning or
installation" means any service
provided by a commissioning and
installation agency, in relation
to,-
(1) erection, commissioning or
installation of plant, machinery
or equipment; or
(ii) installation of-
(a) electrical and electronic
devices, including wirings or
fittings therefor; or
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(b) plumbing, drain laying or
other installations for transport
of fluids; or
(c) heating, ventilation or air-
conditioning including related
pipe work, ductwork and sheet
metal work; or
(d) thermal insulation, sound
insulation, fire proofing or water
proofing; or
(e) lift and escalator, fire
escape staircases or travelators;
or
(f) such other similar services;"
Cenvat Credit Rules, 2004 :
"Rule 2(l)"input service" means
any service, -
(i) used by a provider of taxable
service for providing an output
service, or
(ii) used by the manufacturer,
whether directly or indirectly, in
or in relation to the manufacture
of final products and clearance of
final products from the place of
removal,
and includes services used in
relation to setting up,
modernization, renovation or
repairs of a factory, premises of
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provider of output service or an
office relating to such factory or
premises, advertisement or sales
promotion, market research,
storage upto the place of removal,
procurement of inputs, activities
relating to business, such as
accounting, auditing, financing,
recruitment and quality control,
coaching and training, computer
networking, credit rating, share
registry, and security, inward
transportation of inputs or
capital goods and outward
transportation upto the place of
removal;"
Rule (4) Conditions for allowing
CENVAT credit (1) The CENVAT
credit in respect of inputs may be
taken immediately on receipt of
the inputs in the factory of the
manufacturer or in the premises of
the provider of output service."
19. Definition of term "input
service" as appearing in Rule 2(l)
of the Rules would also include any
service used by a provider of
taxable services for providing an
output service, or used by the
manufacturer, whether directly or
indirectly, in relation to the
manufacture of final products and
clearance of final products from the
place of removal.
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20. In the facts of the case, the
appellant has utilised the
electricity supplied by GEB against
the electricity generated by
Windmills and therefore, service tax
paid by the appellant on the
installation, erection and services
in connection with maintenance of
the Wind Mills are exclusively used
in relation to manufacturing
activity and therefore, the same
would be squarely covered under the
definition of "input service", as
the management, maintenance and
repair of Windmills installed by the
appellant would fall within "input
service" as defined by clause (l) of
Rule 2 read with Rule 4 of the Rules
which provides that any input or
capital goods received in factory or
any input services received by the
manufacturer of final product would
be susceptible to Cenvat Credit.
21. It is pertinent to note that
there is no provision in the Rules
which stipulates that input services
received by the manufacturer must be
received by the manufacturer at the
factory premises.
22. This Court in case of Excel Crop
Care Ltd. (supra) while considering
the question as to the allowability
of Cenvat Credit on mobile services
after considering Rule 2(l) of the
Rules held that the mobile service
provider who is liable to pay
service tax and recovers the same by
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adding such service tax in his bill,
is the person providing taxable
service and is rendering output
service so as to constitute input
service in the hands of the assessee
and therefore, the ground on which
the credit was disallowed as the
phones were not installed in the
factory premises was held to be a
ground not germane to the provisions
of the Rules.
23. The Hon'ble Bombay High Court
in case of Endurance Technology Pvt.
Ltd.(supra) on similar issue of
allowability of Cenvat Credit on
electricity generated from the
Windmills has held as under:
"5. On perusal of these Rules, it
becomes clear that the management,
maintenance and repair of
windmills installed by the
respondents is input service as
defined by clause "I" of Rule 2.
Rule 3 and 4 provide that any
input or capital goods received in
the factory or any input service
received by manufacture of final
product would be susceptible to
CENVAT credit. Rule does not say
that input service received by a
manufacturer must be received at
the factory premises. The
judgments referred to above, also
interpret the word "input" service
in similar fashion.
In the case of Commissioner of
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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
& Petrochemicals 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(1) initially
provides that input service
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means any services of the
description falling in
subclauses (i) and (ii). Rule
2(1) then provides an inclusive
definition by enumerating
certain specified services.
Among those services are
services pertaining to the
procurement of inputs and
inward transportation of
inputs. The Tribunal, proceeded
to interpret the inclusive part
of the definition and held that
the Legislature restricted the
benefit of Cenvat credit for
input services used in respect
of inputs only to these two
categories viz. for the
procurement of inputs and for
the inward transportation of
inputs. This interpretation
which has been placed by the
Tribunal is ex facie contrary
to the provisions contained in
Rule 2(1). The first part of
Rule 2(1) inter alia covers any
services used by the
manufacturer directly or
indirectly, in or in relation
to the manufacture of final
products. The inclusive part of
the definition enumerates
certain specified categories of
services. However, it would be
farfetched to interpret Rule
2(1) to mean that only two
categories of services in
relation to inputs viz. for the
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procurement of inputs and for
the inward transportation of
inputs were intended to be
brought within the purview of
Rule 2(1). Rule 2(1) must be
read in its entirety. The
Tribunal has placed an
interpretation which runs
contrary to the plain and
literal meaning of the words
used in Rule 2(1). Moreover as
we have noted earlier, whereas
Rule 3(1) allows a manufacturer
of final products to take
credit of excise duty and
Service Tax among others paid
on any input or capital goods
received in the factory of
manufacturer of the final
product, insofar as any input
service is concerned, the only
stipulation is that it should
be received by the manufacturer
of the final product. This must
be read with the broad and
comprehensive meaning of the
expression 'input service' in
Rule 2(1). The input services
in the present case were used
by the appellant whether
directly or indirectly, in or
in relation to the manufacture
of final products. The
appellant, it is undisputed,
manufactures dutiable final
products and the storage and
use of ammonia is an intrinsic
part of that process."
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6. In view of this discussion, we
have no hesitation to hold that
the answer to question No. (1) is
in affirmative. Despite this
settled position, learned counsel
for the appellant tried to submit
that the judgment cited at Sr. No.
(2) is being challenged before
Supreme Court. This submission
does not really help us in
deciding the appeals. Both appeals
are dismissed."
24. Similarly, Hon'ble Madras High
Court in case of Ashok Leyland Ltd.
(supra) after considering the
decision of Bombay High Court in
case of Endurance Technology Pvt.
Ltd.(supra) held as under:
"17. Thus, we are to consider as
to whether there has been any
nexus between the energy generated
and the manufacturing activity of
the assessee. This very issue was
considered in Endurance Technology
Pvt. Ltd. (supra). In fact, we
find two substantial questions of
law framed for consideration in
Endurance Technology Pvt. Ltd.
(supra), which are more or less
identical to that of the questions
of law framed in these appeals.
The first question framed for
consideration was whether the
assessee is entitled to avail
Cenvat credit on management,
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maintenance or repair services
provided on services to windmills
installed and situated away from
the factory premises. The second
question was whether electricity
generated on two different places
far away could be said to have
been used for manufacture of the
final product of the assessee in
its factory at Aurangabad.
18. So far as the second
substantial question of law is
concerned, it was answered in the
affirmative in the light of the
stand taken that admittedly, such
electricity generated at those two
different locations was adjusted
to the electricity used in the
factory at Aurangabad and this
adjustment was admitted by the
Revenue and accordingly, the
second question was answered in
favour of the assessee. In the
case on hand also, in the show
cause notice, 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 v.
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Ultratech Cement, 2010 (20) S.T.R.
589 (Bom.); Commissioner of
Central Excise, Nagpur v.
Ultratech Cement Ltd., 2010 (260)
E.L.Τ. 369 (Bom.); and Deepak
Fertilizers & Petrochemicals
Corporation Ltd. v. 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
received at the factory premises
and the decisions relied on also
interpret the word "input service"
in similar fashion.
19. Further, by referring to the
decision in Commissioner of
Central Excise, Nagpur v.
Ultratech Cement, 2010 (20) S.T.R.
589 (Bom.) (supra), it was held
that the definition of "input
service" is very wide and covers
not only services which are
directly or indirectly used in or
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in relation to manufacture of
final product, but also includes
various services used in relation
to business of manufacture of
final product. Further, the
expression "activities" in
relation to business was also
discussed in the said decision
following the decisions of the
Apex Court.
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25. As already pointed out, there
is no dispute that the electricity
generated by the windmills are
exclusively used in the
manufacturing unit for final
products, there is no nexus
between the process of electricity
generated and manufacture of final
products and there is no necessity
for the windmills to be situated
in the place of manufacture.
Further, as already noticed, the
definition of "input service" is
wider than the definition of
"input". Furthermore, if one takes
a look at the Rules, more
particularly Rule 2(k), as it
stood prior to 1-4-2011, which
defines "input", the following has
been specifically inserted.
"within the factory of
production".
However, these words are
physically missing in Rule 2(1),
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which defines "input service" and
it would mean any service used by
a provider of taxable service for
providing an output service or
used by the manufacturer, whether
directly or indirectly, in or in
relation to the manufacture of
final products and clearance of
final products from the place of
removal. Though the definition of
"input service" has to be widely
construed, and in terms of Rule 3,
which allows the manufacturer of
final products to take the credit
of service tax inputs or capital
goods received in the factory of
manufacture of final products,
insofar as any input service is
concerned, the only stipulation is
that it should be received by the
manufacturer of final products.
Therefore, this would be the
correct manner of interpreting
Rule 2(1) of the Rules.
26. In the light of the above, we
are of the considered view that
the decision in the case of Ellora
Times Ltd. (supra) does not lay
down the correct legal position
and we agree with the decision of
the High Court of Bombay in
Endurance Technology Pvt. Ltd.
(supra), which has been followed
by the Larger Bench of the
Tribunal in Parry Engg. &
Electronics P. Ltd."
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25. In view of above settled legal
position and in absence of words
"within the factory of production"
in Rule 2(l) which defines "input
service" which would mean that any
service used by a provider of
taxable service for providing an
output service or used by the
manufacturer whether directly or
indirectly, or in relation to the
manufacture of final product and
clearance of final product from the
place of removal, the definition of
'input service' has to be widely
construed and therefore, the
appellant would be entitled to the
credit of service tax paid on inputs
or capital goods or services
received for Windmills for goods
manufactured in the factory because
only stipulation is that the input
service should be received by the
manufacturer of products.
26. Therefore, in view of decision
of this Court in case of Excel Crop
Care Ltd. (supra) we are in
respectful agreement with the
decision of Hon'ble Bombay High
Court in case of Endurance
Technologies P. Ltd. (supra) as well
as decision of Hon'ble Madras High
Court in case of Ashok Leyland Ltd.
(supra).
27. In view of foregoing reasons, we
answer the questions of law in
favour of the appellant assessee and
against the Revenue. Appeal is
NEUTRAL CITATION
C/TAXAP/194/2009 CAV JUDGMENT DATED: 13/11/2025
undefined
accordingly allowed."
22. Adopting the same reasoning, we
answer the questions of law in favour of
the appellant assessee and against the
Revenue. Appeal is accordingly allowed.
(BHARGAV D. KARIA, J)
(PRANAV TRIVEDI,J)
RAGHUNATH R NAIR
