TaxTMI 
TaxTMI 
2009 (9) TMI 261
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....ities which is a taxable service specified under sub-section (105)(zzza) to section 65 of the Act, as amended. The assessee is availing Cenvat Credit on capital goods and input services to pay the Service Tax due. 2. After asking for clarifications from the appellant, the lower authorities on not receiving any clarifications from the appellants issued a show-cause notice to the appellant on the ground that the appellant : (i) had contravened the provisions of rule 3 of the Credit Rules inasmuch as they had irregularly availed Cenvat credit of Rs. 1,16,36,883 up to September, 2007 on ineligible capital goods namely Tippers. Further, it appeared that the Credit taken by the assessee had also contravened rule 9 of the Credit Rules read with rule 11 of the Central Excise Rules, 2002 and the credit (of Rs. 1,46,73,555) was also inadmissible on the ground that the same was taken basing on invalid documents namely 11 Tax Invoices and 18 Extra copies of Invoices. (ii) was therefore liable to pay an amount of Rs. 1,66,36,883 being the inadmissible Cenvat credit taken on the Tippers in terms of rule 14 of the Credit Rules inasmuch as he had irregularly taken Cenvat credit on the ineligibl....
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.... lakhs thirty six thousand eight hundred and eighty three only) on the Tippers during June, 2005 to September, 2007 and availed the same for Service Tax payment and I therefore order them to pay the same back with interest thereupon. (b) I also determine that interest under Rule 14 of the Credit Rules read with section 75 of the Act should be paid by them on the amount of Rs. 1,66,36,883. (c) I impose a penalty of Rs. 16,00,000 (Rupees Sixteen Lakhs only) under Rule 15 of the Credit Rules on M/s. G. Ramanaiah Naidu for the contraventions narrated above. (d) I also impose a penalty of Rs. 1,000 under section 77 of the Act on the assessee for the late filing of the ST-3s for contraventions cited in the 2 Notices. (e) I also determine that subsisting with the above decisions, the credit taken on the 29 invalid invoices (totalling to Rs. 1,46,73,555) is not admissible to them in any case, as the invoices on which such credit was taken do not conform to the provisions of Rule 9 of the Credit Rules read with Rule 11 of the Central Excise Rules, 2002 and I impose a penalty of Rs. 1,00,000 (Rupees One Lakh only) under Rule 15(1) of the Credit Rules for the violations as narrated in the....
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....it is commercially inexpedient to carry out site clearance activities without tippers. He would rely upon the following decisions in support of abovesaid propositions : (1) J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. STO 1997 (91) ELT 34 (SC). (2) Collector of Central Excise v. Eastend Paper Industries Ltd. 1989 (43) ELT 201 (SC). (3) Collector of Central Excise v. Rajasthan Chemical Works 1991 (55) ELT 444 (SC). (4) Union Carbide India Ltd. v. CCE 1996 (86) ELT 613 (LB). (5) CCE & Cus v. Modi Rubber Ltd. 2000 (119) ELT 197 (Trib. - LB). 6. It is his submission that in any case, the appellants have already discharged the entire amount which has been confirmed by the lower authority as ineligible Cenvat Credit. It is his submission that penalty imposed by the adjudicating authority is uncalled for in this case as they have already reversed the entire amount before issuance of show-cause notice. It is his submission that the penalty imposed by the authority also be set aside. 7. Learned JCDR on the other hand would submit that the appellant falls under the category of the provider of service of 'site formation and clearance services'. She would submit that from the specific prov....
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....enumerated under Rule 2(a)(A) or (B). It is also her submission that the definition of inputs as has been sought to be interpreted by the learned counsel is totally inconsistent as the said definition very clearly indicates that the input means exclusion of motor vehicles. It is her submission that all the case laws which have been cited and relied upon by the learned counsel in respect of Modvat/Cenvat credit during the period wherein the definition was not that categorical as it is now. 10. We have considered the submissions made at length by both sides and perused the records. The undisputed facts in this case are, the appellant is a provider of output service i.e., "Site formation and clearance, excavation and earth moving and demolition services". It is also undisputed that the appellant had purchased the capital goods like excavators dozers, craters and tippers. On perusal of the records we find that the invoices issued by M/s. Volvo International Ltd., for the sale of such tippers to the appellant indicate chapter sub-heading as 8704.2390. This classification is done by the manufacturers of the vehicles to his range officers. It is on record that such classification is not....
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....f), (n), (o), (zr), (zzp), (zzt) and (zzw) of clause (105) of section 65 of the Finance Act;" "(k) 'input' means (i) all goods, except light diesel oil, high speed diesel oil and motor spirit, commonly known as petrol, used in or/in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not and includes lubricating oils, greases, cutting oils, coolants, accessories of the final products cleared along with the final product, goods used as paint, or as packing material, or as fuel, or for generation of electricity or steam used in or in relation to manufacture of final products or for any other purpose, within the factory of production; (ii) all goods, except light diesel oil, high speed diesel oil, motor spirit, commonly known as petrol and motor vehicles, used for providing any output service." 12. It can be noticed from the above reproduced definition the capital goods as to fall under categories as indicated in rule 2(a) (A) (i), i.e, under Chapter 82, 84, 85 or 90 with the exclusion it can be seen that Chapter 87 has been kept out of the purview of the capital goods. It is also seen that sub-rule (a)(B) spec....