2018 (5) TMI 544

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....985. During the course of verification of their records by the Departmental Officers of Audit Wing, it was noticed that the appellant during the period from December 2012 to October 2014 had taken CENVAT Credit of service tax paid to M/s. Bangalore Metropolitan Transport Corporation (BMTC) for services of transportation provided to the appellant's employees to and fro their workplace. As it appeared that the said service did not fall within the ambit of input service as per Rule 2(l) of the CENVAT Credit Rules, 2004, an objection was raised by the officers of Audit and the amount of Rs. 77,969/- was reversed by the appellant in their CENVAT account under protest. However, subsequently, the appellant filed a refund claim for Rs. 77,969/- on ....

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....ubject to the condition being fulfilled. He further submitted that renting of motor vehicle which is a capital goods in the hands of service provider will not be covered under the ambit of Rule 2(l)(B) of CENVAT Credit Rules, 2004. Undisputedly, BMTC buses hired for transportation of employees of the appellant are capital goods under Rule 2(a) of the CENVAT Credit Rules, 2004 in the hand of BMTC. Therefore, the exclusion will not apply in the present case. Further, the department has not discharged its burden to prove that BMTC buses in question are not capital goods in the hands of service provider. In support of his submission, he relied upon the following decisions: Marvel Vinyls Ltd. vs. CCE: 2016-TIOL-3071-CESTAT-DEL, ....

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....r vehicle which is not capital goods. The contention of the assessee is that motor vehicle is a capital goods, as per the definition of the capital goods contained under Rule 2(a) of the Cenvat Credit Rules, 2004. The appellate authority has specifically observed that the said input service, i.e., renting of "motor vehicles" have been specifically included except in case where motor vehicle is eligible for Cenvat credit as capital goods. 5. He has however denied the benefit to the assessee on the ground that such motor vehicle are not capital goods for the appellant, Cenvat credit availed on the input services of renting of motor vehicle would not be admissible. 6. However, I find flaw in the above interpretation ....