SUDHIR AGARWAL,J. - (1.) Heard Sri Dipak Seth, Advocate, for appellant and Sri Rajesh Tewari, Advocate, for respondent.
(2.) This appeal under Section 35G of Central Excise Act, 1944 (hereinafter referred to as the "Act, 1944") has arisen from judgment and order dated 13-7-2015 passed by Customs, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as "Tribunal") in Customs Appeal No. E/119/2012-E(SM) [2016 (41) S.T.R. 521 (Tribunal)] allowing assessee's appeal with respect to Cenvat credit for the period up to September, 2008 in respect to construction of a Dormitory. It was admitted on following substantial questions of law : "i. Whether the CESTAT is correct in allowing Cenvat credit in respect of construction services used in constructions of dormitory even when there is no co-relation between such input services and manufacture/clearance of finished goods as these services are more closely associated to welfare activity? ii. Whether Hon'ble CESTAT was right in allowing the appeal of the respondent against order-in-appeal No. 208/CE/APPL/ ALLD/2011, dated 7-10-2011 filed by M/s. Bajaj Hindustan Limited, Unit Kundarki, Gonda, U.P.? iii. Whether, the adjudicating authority was right in disallowing Cenvat credit of Rs. 27,77,221/- taken and utilized by M/s. Bajaj Hindustan Limited, Unit Kundarki, Gonda, U.P. on construction of dormitory?"
(3.) However, during the course of argument, we find that there is another substantial question of law which is founded on a basic fact as to whether, dormitory in question is within precinct of factory or outside the factory premises, since, learned counsel for parties could dispute that Cenvat credit will be available only when Dormitory is within precinct of factory and otherwise. The Tribunal has proceeded on assumption that Dormitory is within the precinct of factory, still Cenvat credit has been denied to assessee and it is evident from para 1 of Tribunal's order which reads as under : "This appeal is directed against the impugned order dated 7-10-2011 passed by the Commissioner (Appeals), Central Excise and Service Tax, Allahabad, wherein Cenvat credit taken on the disputed services for construction of dormitory in the precincts of the factory has been denied to the appellant.";