TaxTMI 
TaxTMI 
2017 (3) TMI 568
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....n after referred to as SFC). On the basis of an intelligence, Central Excise Officers visited the premises of the main appellant and resumed records. On scrutiny of such records, it was noticed by the officers that main appellant had not paid correct service tax on the service provided to WCFL and under reported the payment received from WCFL. They have wrongly availed CENVAT credit on capital goods, inputs and input service. Coming to such conclusion, show-cause notices were issued demanding the short paid service tax, interest thereof and also for demanding ineligible CENVAT credit availed. The show-cause notice also proposed for imposing penalty on main appellant and also individually. The main appellant as well as the individuals contested the show-cause notice on merits and on limitation. The adjudicating authority after following due process of law confirmed the demand raised and also imposed penalties besides demanding interest on the confirmed demand. 3. Shri Bharat Raichandani, learned Advocate appearing for appellant takes us through the entire case records. As regards the demand of short payment of duty, it is his submission that they have made good the short payment ba....
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....Hon'ble High Court of Madras in the case of Commissioner of Income Tax v. Soft Beverages (Pvt.) Ltd. (unreported) MANU/TN/2744/2010 for the proposition that there was an amendment in respect of availment of CENVAT credit on dumpers & tippers for the service providers rendering the service and the said amendment will apply retrospectively. 4. Learned D.R. submits that as regards CENVAT credit on dumpers & tippers, the Tribunal in the case of Ganta Ramanaiah Naidu v. Commissioner of Central Excise 2010 (18) STR 10 has clearly held that the CENVAT credit cannot be availed on dumpers and tippers. He read extensively from the said decision. 4.1 As regards the short payment of service tax, it is his submission that the short payment reconciliation submitted by appellants has been considered by the adjudicating authority and hence there is no need for readjudication. 5. We have considered the submissions made at length by both sides and perused the records. 5.1 As regards the service tax liability for the entire period by appellant, it is the case of appellant that they had filed a detailed reconciliation statement as to the demands raised on short payment of duty. We find that th....
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....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 87042390. This classification is done by the manufacturers of the vehicles to his range officers. It is on record that such classification is not in dispute and the manufacturer and the Revenue have accepted the classification as has been declared by the manufacturer i.e. Volvo International Pvt. Ltd., Bangalore . On this factual matrix, the reliance placed by the learned counsel in the case of M/s. Dipco Metal Fabricators (supra) seems to be mis-placed in as much as that the said decision of the Tribunal has not given any detailed finding as regards the classification of the tipper under chapter heading 8428.90. On perusal of the said order, we find that the Tribunal came to the conclusion only on the ground that similarly placed manufacturer in the area have been classified under chapter 84 and coming to such a conclusion, the classification as filed by the appellant was upheld. In the case before us this is not so. There is no dispute as to the classification of the product i.e. tippers by manufacturer i.e. M/s. Volvo, an....
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....reproduced definition the capital goods as to fall under categories as indicated in Rule 2(a)(A)(i) i.e. under Chapter 82,4 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) specifically allows credit of duty paid on motor vehicles registered in the name of provider of output service. On perusal of the definition of input, we find that Rule 2k(ii) specifically excludes motor vehicles from the benefit of input stage credit. We find that the rules and the definition are very very clear and unambiguous. It can be concluded that the provisions of Rule 2(a) and 2(k) of the Cenvat Credit Rule specifically exclude motor vehicles from the benefit of the credit either as capital goods or inputs, but for the specific situations as indicated therein. In the absence of any other provisions, we find that the credit availed by the appellant in this case is inadmissible to him as it is undisputed that the vehicles i.e. tippers are classified under chapter 87 of the Schedule to Central Excise Tariff Act, 1985. In view of this, we hold that the impugned order that confirms the demand of the reversal of....