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BRIEF FACTS OF THE CASE:

M/s Jaypee Wanakbori Cement Grinding unit, (A unit of Jayprakash Associates), 203, Village- Sangol, Post – Sonipur, Taluka Nadiad, Dist. Kheda –388 245 (hereinafter referred to as “the appellant”) have filed the present appeal along with Stay application against Order-in-original No. AHM-STX-003-ADC-065-11 dated 01.12.2011 (hereinafter referred to as “the impugned order”) passed by Additional Commissioner, Central Excise & Service Tax, Ahmedabad-III (hereinafter referred to as “the adjudicating authority”).

2. The brief facts of the case are that, the appellant are a registered unit and engaged in the manufacture of ordinary portland cement falling under chapter 25 of the Central Excise Tariff Act, 1985. They are also availing Cenvat credit facility as provided under Cenvat Credit Rules, 2004.During the course of Central Excise audit, it was found that, the appellants have wrongly availed Cenvat credit amounting to `13,25,106/- in the month of April 2010, as input service being service tax paid on “construction services” in respect of construction of residential quarters. Therefore a show cause notice bearing No. V.25/15-157/Off/OA/10-11 dated 27.4.2011 was issued to the said appellant for the recovery of the Cenvat credit of ` 13,25,106/- wrongly availed under Rule 14 of Cenvat Credit Rules, 2004 read with section 73 of Finance Act, 1994 and section 11A of Central Excise Act, 1944 ; recovery of interest under Rule 14 of Cenvat Credit Rules, 2004 read with section 11AB of Central Excise Act, 1944 and section 75 of Finance Act, 1994 and proposed penalty under Rule 15 of

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Cenvat Credit Rules, 2004 and Rule 25 of Central Excise Rules, 2002 . The adjudicating authority while adjudicating the case relied upon the judgments of the Hon’ble Supreme Court in case of M/s. Maruti Suzuki Ltd.- 2009(240)E.L.T. 641(SC), and the judgments of Hon’ble High Court of Nagpur bench in case of Manikgarh Cement- 2010(20) S.T.R. 456(Bom.) and Hon’ble High Court of Gujarat’s judgment in case of Gujarat heavy Chemicals – 2011(22) S.T.R. 610(Guj.), held that, ‘construction service’ used for constructing residential quarters for staff/employees are not an input service for the manufacturing activity of the appellant and therefore held that the service tax paid on the said construction service is not eligible for availing Cenvat credit under input service credit. The adjudicating authority therefore, vide the impugned order, disallowed the credit and ordered recovery of the same along with interest under Rule 14 of Cenvat Credit Rules, 2004 and imposed penalty of ` 1,00,000/- under Rule 15(1) of Cenvat Credit Rules, 2004.

3.1. Being aggrieved with the impugned order, the appellant have filed the present appeal along with a stay application on the grounds that, the residential colony has been used by their employees and workers who are constantly engaged in the business activity of production and sale of finished goods; both the construction of residential complex, commercial or industrial construction service are taxable services under Section 65(105)(zzzh) and Section 65(105)(zzq) of Finance Act, 1994; the construction agency situated in the registered premises of the appellants appropriated charged service tax; they are of the confirmed opinion that when a manufacturer procures one or more taxable services in connection with their business activity is

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eligible to take Cenvat credit of service tax; the objects of enactment of Cenvat credit scheme is to reduce cascading effect of specified taxes, leviable on the finished goods and to reduce the burden of specified taxes resulting into reduction of the cost of production of the said finished goods, facilitating them to compete in the international trade. Relying on the Tribunal’s judgment in cases of ITC Ltd. – 2010(17)S.T.R. 146(Tri.- Bang.), Port Officer GMB- 2010(19) S.T.R. 282 (Tri.- Ahmd.), M/s. Ultratech Cement Ltd.- 2011(22) S.T.T. 578(Tri.- Ahmd.),M/s. GHCL Ltd.- 2009 (16) S.T.R. 588 (Tri.- Ahmd.), M/s. Hindustan Zinc Ltd.- 2009 (16) S.T.R. 704 (Tri.- Bang.) and M/s. Ultratech Cement Ltd.- 2010 – TIOL-745-HC-MUM-ST, the appellant contended that Cenvat credit of Service tax paid by them on construction of Residential complex service is admissible.

3.2. The appellants further based on the Hon’ble Bombay High Court’s order in case of Coca Cola India Pvt. Ltd.- 2009(242)ELT 168(Bom.) have contended that once a manufacturer has paid service tax and taken Cenvat credit of such service tax paid on his input service, procured by him, in connection with his Business Activity on the basis of valid duty paying documents, his eligibility to claim such credit, not to be question, on the basis of assessment of service by the department is incorrect at the end of service provider. They also relied the following judgments in case of M/s. TPL Plastech Ltd. – 2009(16) S.T.R. 161 (Tri.- Ahmd.), M/s. Semco Electrical - 2010 918) S.T.R. 177 (Mum- CESTAT). Relied upon the judgments in case of M/s. Ultratech cement Ltd., the appellant have contended that, Cenvat credit of service tax extended to all services used in relation to Business of manufacturing of final product, it also includes

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various services used in relation to the business of manufacture of final products be it prior to the manufacture of final products or after the manufacture of final product. They also relied the Hon’ble Apex Court’s judgment in case of M/s. Maruti Suzuki Ltd.- 2009(240) ELT 641 (SC).Relying upon the Hon’ble High Court of Gujarat’s judgment in case of M/s. Gujarat Heavy Chemicals -2011(22) S.T.R. 610 (Guj.), M/s. Grasim Industries – 2011(21) S.T.R. 378 (Tri.- Chennai), M/s. Lakshmivilas Bank Ltd.- 2011(21) S.T.R. 294 (Tri.- Chennai) and M/s. Ballarpur Industries – 2010(17) S.T.R. 101 (Tri.- Mumbai), the appellants have contended against the imposition of penalty also.

4. Personal hearing in the appeal was conducted on 06.8.2012. Shri H.D. Dave, Advocate appeared for personal hearing on behalf of the appellant and reiterated the submissions & relied upon the judgments cited in the grounds of appeal. He has nothing more to add.

DISCUSSION AND FINDINGS:

5. I have carefully gone through the facts of the case and the submissions made by appellants in the memorandum of the appeal as well as the submissions made at the time of personal hearing. I find that the moot point involved in this present appeal is whether, the appellant is eligible for CENVAT Credit of Service Tax paid on “Construction Services” related to construction of Residential staff Quarters as “input service” under the Cenvat Credit Rules, 2004.

6. I find that the adjudicating authority has held that the appellants are not eligible to avail the Cenvat credit of service tax paid on “Construction Services” provided for

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construction of Residential staff Quarters, situated in their factory premises, on the ground that there is no nexus between the said “Construction Services” with the business activities of the appellants, as such same can not be termed as input services. On the contrary to the said findings, the appellants in the present matter at hand have contended that they are entitled to avail the Cenvat credit on the said services as input service. The matter is required to be decided in light of the definition on input services as laid down under section Rule 2(1) of Cenvat Credit Rules, 2004, which is reproduced as below: (l) “input service” means any service, -

  (i)  used by a provider of taxable service for providing an output service; or

  (ii) used by a manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal, and includes services used in relation to modernisation, renovation or repairs of a factory, premises of 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, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation upto the place of removal;

As per the definition, in the context of the present matter, services which are exclusively related to business activity of the appellant can be termed as input service and accordingly Cenvat credit is admissible on such input services under the Cenvat Credit Rules, 2004. I find that the appellants have availed Cenvat credit of service tax as input services on the Service Tax paid for construction of

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residential staff quarters; the said credit has been disallowed by the adjudicating authority on the grounds that the impugned services did not have nexus to the business activity of the appellants.

7. I find that, as per the provisions of Rule 3 of Cenvat Credit Rules, 2004 a manufacturer of excisable goods or provider of taxable service can avail credit of service tax paid on the input services used by them. “Input services” has been defined under Rule 2(l) Cenvat Credit Rules, 2004 and accordingly for qualifying the service as ‘input service’, the said service should be used in relation to manufacture of final products and clearance of final products. Therefore, the point to be decided in the instant case is whether services used for construction of residential quarters has any nexus with the business activity of the said appellant or otherwise. I find that, construction services used for constructing residential quarters for staff/employees are not an input service for the manufacturing activity of the said appellant and the service tax paid on the said construction service is not eligible for availing Cenvat credit as input service credit. There is no merit in the contention of the appellants that the residential quarters are used by the staff/employees and workers who are constantly engaged in their business activity production and sale of excisable goods and that they have correctly taken the input service credit. The appellants have claimed that the benefit of Cenvat credit of service tax extended to all services used in relation to Business of manufacturing of final product, accordingly the are entitled to claim Cenvat Credit on the construction service’ used for constructing residential quarters for staff/employees as an input service, I agree with the said contention of the

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appellants to the extent that to avail the Cenvat Credit on the services as inputs service under CENVAT Credit Rules, 2004, there has to be co-relation and nexus between the input services with the business activities of the appellants. In the instant case, I find that the appellants have not explained or brought out the nexus between the said services claimed as ‘input services’ with their business activities, since same has not been directly or indirectly related to the business of the appellants. As such, I find that there is no nexus between the so called input services with the business activity of the appellants, as the activity of the appellant for establishing residential quarters for employees are welfare activity and same cannot be termed as, business activity and accordingly the construction service can not be qualified as input service under Rule 2(l) Cenvat Credit Rules, 2004. In above viewpoint, I place reliance on the judgment of the Hon’ble Tribunal in case of Grasim Industries 2011 (21) S.T.R. 378 (Tri. - Chennai), the Hon’ble Tribunal on relying Hon’ble Apex Court decision in case of Maruti Suzuki [2009 (240) E.L.T. 641 (S.C.)] – and case of Sundaram Brake Linings [2010 (19) S.T.R. 172 (Tribunal)] held that services i.e. Repair and maintenance services received for staff colony, gardening service, security service in wind farms, swimming pool maintenance and civil works undertaken at auditorium and shopping complex having no nexus with manufacture of cement accordingly Credit was disallowed. I also rely the judgment of the Hon’ble High Court of Bombay in the case of MANIKGARH CEMENT - 2010-TIOL-720-HC-MUM-ST, wherein it was held that to qualify as an input service, the activity must have nexus with the business of the assessee. The honorable Court has held as under:

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“8. In our opinion, establishing a residential colony for the employees and rendering taxable services in that residential colony may be a welfare activity undertaken while carrying on the business and such an expenditure may be allowable under the Income Tax Act. However, to qualify as an input service, the activity must have nexus with the business of the assessee. The expression 'relating to business' in rule 2(l) of CENVAT Credit Rules, 2004 refers to activities which are integrally related to the business activity of the assessee and not welfare activities undertaken by the assessee.”

8. I rely the judgment of the Hon’ble Apex Court, in case of Maruti Suzuki reported at 2009(240) ELT 641 (SC), wherein it has been held that:

“Cenvat/Modvat - Input, scope of - Crucial requirement that all goods “used in or in relation to the manufacture of final products” qualify as “input” - Expression not a standalone item but to be read in entirety as “used in or in relation to manufacture of final product whether directly or indirectly and whether contained in the final product or not“ - Inputs falling in inclusive part must have nexus with manufacture of final product - Functional utility of item would constitute relevant consideration - All the three parts of definition, namely specific, inclusive and place of use to be satisfied before an input becomes an eligible input - Rule 2(g) of Cenvat Credit Rules, 2002 - Rule 2(k) of Cenvat Credit Rules, 2004. - Unless and until the said input is used in or in relation to the manufacture of final product within the factory of production, the said item would not become an eligible input. The said expressions “used in or in relation to the manufacture” have many shades and would cover various situations

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based on the purpose for which the input is used. However, the specified input would become eligible for credit only when used in or in relation to the manufacture of final product.”

The relevant extract of the judgment is as under:-

“14. In the case of Collector of Central Excise, New Delhi v. M/s. Ballarpur Industries Ltd. reported in (1989) 4 SCC 566 the difference between the expression “used in the manufacture” and “used as input (raw material)” was highlighted. In that judgment, it was held that undoubtedly the said two expressions are distinct and separate, but, when an ancillary process (like electricity generation) aids the making of an end product, then, the ancillary process gets integrally connected to the end product. In the said judgment, this Court applied what is called as “the dependence test”. It may, however, be noted that in the definition of “input” the expression “used in or in relation to the manufacture of final product” is not a standalone item. It has to be read in entirety and when so read it reads as “used in or in relation to the manufacture of final product whether directly or indirectly and whether contained in the final product or not”. These words “whether directly or indirectly” and “whether contained in the final product or not” indicates the intention of the legislature. What the legislature intends to say is that even if the use of input (like electricity) in the manufacturing process is not direct but indirect still such an item would stand covered by the definition of “input”. In the past, there was a controversy as to what is the meaning of the word “input”, conceptually. It was argued by the Department in a number of cases that if the identity of the input is not contained in the final product then such an item would not qualify as input. In order to get over this controversy in the above definition of “input”, the Legislature has clarified that even if an item is not contained in the final product still it would be classifiable as an “input” under the above definition. In other words, it has been clarified by the definition of “input” that the following considerations will not be relevant:

(a) use of input in the manufacturing process be it direct or indirect;

(b) even if the input is not contained in the final product, it would still be covered by the definition.

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These considerations have been made irrelevant by the use of the expression “goods used in or in relation to the manufacture of final product” which, as stated above, is the crucial requirement of the definition of “input”. Moreover, the said expression, viz, “used in or in relation to the manufacture of the final product” in the specific/substantive part of the definition is so wide that it would cover innumerable items as “input” and to avoid such contingency the Legislature has incorporated the inclusive part after the substantive part qualified by the place of use. For example, one of the categories mentioned in the inclusive part is “used as packing material”. Packing material by itself would not suffice till it is proved that the item is used in the course of manufacture of final product. Mere fact that the item is a packing material whose value is included in the assessable value of final product will not entitle the manufacturer to take credit. Oils and lubricants mentioned in the definition are required for smooth running of machines; hence they are included as they are used in relation to manufacture of the final product. The intention of the Legislature is that inputs falling in the inclusive part must have nexus with the manufacture of the final product.”

9. In view of the above settled law practice, I find that the ‘construction service’ used for constructing residential quarters for staff/employees is not an input service for the manufacturing activity of the appellants. The appellants are engaged in the manufacture of Cement and it is pertinent to note that they are not providing any of the taxable out put service, as such the construction service for Residential staff quarters on which the appellants have availed Cenvat credit, in any of the manner, the services have no nexus with the manufacture activities of the appellants, as such the said service can not be termed as input service for the business of the appellants. Therefore, the appellants were not eligible for availing Cenvat credit of service tax paid on the said construction service under the Cenvat Credit Rules, 2004.

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Therefore, I find that the adjudicating authority has correctly disallowed the Cenvat of said services and also the judgments relied by the adjudicating authority are squarely applicable with the facts of the present case. As such, I uphold the impugned order to that extent.

10. I now consider case law submitted by the appellant in the grounds of appeal in support of their claim. The Tribunal vide decision cited at 2011 (22) STR 578 (Tri.-Ahmd.) the facts of this case are distinguishable from the facts of the appeal in hand in as much as the case of Ultratech Cement Ltd was a case of Cenvat credit of Service Tax availed on Vehicles used in residential colony of assessee and insurance on residential buildings. There are no such services involved in the case of the appellant; as such the case law cited by the appellant is not applicable in the present issue. In the case of GHCL Ltd., as cited by the appellant reported at 2009(16) STR 588 (Tri. Ahmd.), the Hon’ble Tribunal had allowed Cenvat credit as input service on “Security Agency service” related to residential colony, the said decision has been reversed by the Hon’ble High Court Of Gujarat- 2011 (22) S.T.R. 610 (Guj.), wherein it was held that Credit on said service is not available as per Rule 2(l) of Cenvat Credit Rules, 2004, as such the decision relied by the appellant cannot be sustained to the facts of the present appeal. In the case of Hindustan Zinc Ltd., as cited by the appellant 2009(16) STR 704 (Tri. Bang.), Hon’ble Tribunal had allowed Cenvat credit as input service on Services such as colony security service, transport service for employees and guest house maintenance, where as the present matter at hand the appellants have failed to prove co-relation and nexus between the services with their business activities, hence

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the ratio of this decision cannot be applied to the facts of the matter at hand in the present appeal. In the case of Coca Cola India P. Ltd., 2009(242) ELT 168 (Bom.), Cenvat credit has been allowed for the activities which are related to business, whereas in the present issue the activities of construction of Residential quarters for staff is purely a staff welfare activities, therefore the facts of the case are distinguishable from the facts of the appeal on hand. In the case of Grasim Industries 2011 (21) S.T.R. 378 (Tri. - Chennai), the Hon’ble Tribunal on relying Hon’ble Apex Court’s decision in case of Maruti Suzuki [2009 (240) E.L.T. 641 (S.C.)] – and case of Sundaram Brake Linings [2010 (19) S.T.R. 172 (Tribunal)] held that services i.e. Repair and maintenance services received for staff colony, gardening service, security service in wind farms, swimming pool maintenance and civil works undertaken at auditorium and shopping complex having no nexus with manufacture of cement accordingly Credit was disallowed, as such I find that the ratio of the judgment is not in favour of the appellant. On the contrary same has supported the findings of the adjudicating authority as proper and just. Similarly, in case of TPL Plastech Ltd.,-2009 (16) STR 161 (Tri.-Ahmd.) the ratio of the judgment is not applicable with the facts of the present case since the Hon’ble Tribunal has decided the admissibility of the Cenvat Credit on Mobile Phone, as such the citation relied by the appellant is irrelevant. In case of Semco Electrical-2010 (18) STR 177 (Mum.-CESTAT),the Hon’ble Tribunal has held that the Cenvat Credit is entitled on the services used in relation to the business activities, whereas in the present matter there is no nexus between the service and business activities, as such the ratio of the judgment is not applicable

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at all. As regard decision of the Hon’ble Tribunal in case of Lakshmivilas Bank Ltd.,-2011(21) STR 294(Tri.-Chennai) relied by the appellant in support of their claim, I find that the matter has so far not been attained finality as the matter has been placed before Hon’ble President for considering references to Division Bench, as such at this juncture it is premature to say that on the virtue of said judgment Cenvat Credit of Service Tax paid on the construction of Residential quarters of the staff falls under the ambit of the definition of input service as specified under Rule 2(l) of the Cenvat Credit Rules, 2004.Further, the appellant has relied on the judgment of the Hon’ble High Court of Gujarat in case of Gujarat Heavy Chemicals-2011(22) STR. 610 (Guj.). I find that the Hon’ble High Court of Gujarat vide the afore said judgment held that the activities related to “Security services utilized in the residential colony can not be termed within the sweep of expression of input service as provided in Rule 2(l) of the Rules”. The Tribunal vide decision cited at 2010(17) S.T.R. 146 (Tri.- Bang.) the facts of the case are distinguishable from the facts of the present case as the case of ITC Ltd, it was a case of Cenvat credit of service tax availed on services used for maintenance of staff colony - Security agency, labour supply, advertising, repair and maintenance, rent-a-cab, manpower recruitment and Business Auxiliary Services etc. There are no such services involved in the case of the appellants and also the appellants have failed to prove co-relation and nexus between the services with their business activities as such the case law cited by the appellant is not squarely applicable in the present issue. The Hon’ble Tribunal’s decision in case of Port Officer, Gujarat Maritime Board reported in 2010(19) S.T.R.

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282(Tri.- Ahmd.), the facts of case are distinguishable from the facts of the present case as in the case of Port Officer, GMB, it was a case of Cenvat credit of service tax availed on Inspection charges for constructing staff quarters. There are no such services involved in the case of the appellants; as such the case law cited by the appellant is not squarely applicable in the present issue. Therefore, the citations given by appellant in this regard are accordingly not relevant. In view the above findings, the contentions put forth by the appellants are not sustainable and I uphold the impugned order to that extent.

11. I now take up the issue of imposition of penalty under Rule 15(1) of Cenvat Credit Rules, 2004. The appellants have contented that the penalty under Rule 15(1) of Cenvat Credit Rules, 2004 was not imposable and relied upon the decision of the Hon’ble Tribunal in case of Ballarpur Industries Ltd.,-2011(17) STR 101(Tri.- Mumbai), M/s. Gujarat Heavy Chemicals -2011(22) S.T.R. 610 (Guj.), M/s. Grasim Industries – 2011(21) S.T.R. 378 (Tri.- Chennai) and M/s. Lakshmivilas Bank Ltd.- 2011(21) S.T.R. 294 (Tri.- Chennai). I find that the Hon’ble Tribunal in case of Ballarpur Industries Ltd has held that for imposing penalty, mala fide intention specifically alleged or found to exist in taking the credit of service tax paid on maintenance charge and the mens rea of the assessee is to be established before imposing penalty. In the present case, I find that, the fact of wrong availment of Cenvat credit of service tax paid on construction of residential quarters remained suppressed and came to light only during the Audit of their records by officers of the department. I find that in the present system of self-assessment, documents like invoices and other transaction details are not supplied to the Department. Moreover, the

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appellants have never disclosed the said facts to the department even they did not consult the Department in case of any doubt or ambiguity about the admissibility of the Cenvat Credit on the said service, as such the intention will have to be believed as deliberate act of wrong availment of Cenvat Credit of Service Tax. Therefore, I find that the adjudicating authority has correctly imposed the penalty on the appellants and same is valid and sustainable, as such the ratio of the judgment is not applicable at all. The appellants further contended that during the period of ambiguity; penalty is not leviable; I have already discussed the issue of inadmissibility of Cenvat Credit on ‘construction service’ as an input service used for constructing residential quarters for staff/employees. I find that if the appellants had any doubt with regard to admissibility of Cenvat Credit, then they should have approached the service tax authorities for clarification of doubt to ascertain the admissibility of Cenvat Credit on ‘construction service’ before availment of same in their books of account. Therefore, I find hat there is no ambiguity in the present matter accordingly I consider that it appropriate to hold the appellant liable to penalty under Rule 15(1) of Cenvat Credit Rules, 2004.As In view of the above discussion and findings, the ratio of cases relied upon by the appellants can not be applied in the issue at hand. I find the adjudicating authority has judiciously imposed penalty on the appellants as such I uphold the impugned order to that extent.

12. In view of the above, I find that the appellants have failed to establish the nexus between the services received with the business activities carried out by the appellants; as such they are not eligible to avail Cenvat credit on such

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services. As the non- admissibility of Cenvat Credit has been established as discussed hereinabove; the adjudicating authority has correctly disallowed the credit. Therefore, the impugned order for recovery of the Service Tax credit along with interest and imposition of penalty under Rule 15(1) of Cenvat Credit Rules, 2004 is found proper and just.

13. In view of the above discussions, I, therefore, find no reason to interfere in the impugned order passed by the adjudicating authority, confirming the demand for Service Tax and interest and imposing penalty. In view of the above, I pass the following order:

O R D E R

14. I uphold the impugned order passed by the adjudicating authority and reject the appeal and Stay application filed by the appellant.

Sd/- 16.08.2012

(SUNILKUMAR SINGH)COMMISSIONER (APPEAL-III)

CENTRAL EXCISE, AHMEDABAD.

Attested

(Atul Chaturvedi)Superintendent (Appeal-III)Central Excise,Ahmedabad

(By R.P.A.D.)ToM/s Jaypee Wanakbori Cement Grinding unit, (A unit of Jayprakash Associates), 203, Village Sangol, Post – Sonipur, Tal. Nadiad, Dist. Kheda – 388 245.

COPY TO:1. The Chief Commissioner of Central Excise, Ahmedabad.

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2. The Commissioner of Central Excise, Ahmedabad-III.3. The Additional Commissioner, Central Excise, Ahmedabad-III.4. The Asst. Commissioner, Central Excise Division, Nadiad.5. Guard file.6. PA file.