2019 (4) TMI 428

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....Mining of Minerals' service to M/s. Mysore Minerals Ltd. at Subrayanahalli Mines at Sandur and paying service tax on the same. For the purpose of carrying out mining operations, appellant had taken on hire the excavators, wheel loaders and tippers. The service providers had paid service tax on the hiring of the said earth moving equipment. The audit party during the audit of the books of the appellant in January 2011 observed that the hiring of these earth moving equipments used for mining of minerals at the mines are not eligible for CENVAT credit and asked the appellant to reverse the entire CENVAT credit of Rs. 10,41,958/- along with interest Rs. 2,78,134/-. Subsequently, the Additional Commissioner of Central Excise issued show-cause no....

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.... relied upon in the showcause notice is an amended definition of input service under Rule 2(l) of CCR, 2004 vide Notification No.28/2012-CE(NT) dt. 20/06/2012 applicable w.e.f. 01/07/2012 onwards. He further submitted that the dispute in the present case is for the period from May 2011 to May 2012. The eligibility of the input services for CENVAT credit is to be determined based on the definition of input service as applicable during the relevant period. Learned counsel took me through the input service definition under Rule 2(l) of CCR, 2004 as applicable for the period up to 31/03/2011 and thereafter the definition of input service as amended vide Notification No.3/2011-CE(NT) dt. 01/03/2011 and applicable w.e.f. 01/04/2011 to 31/03/2012 ....

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....and parts thereof falling under heading 6804 of the First Schedule to the Excise Tariff Act; ........... (C) dumpers or tippers, falling under Chapter 87 of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), registered in the name of provider of output service for providing taxable services as specified in sub-clauses (zzza) and (zzzy) of clause (105) of Section 65 of the said Finance Act; 4.2. Learned counsel also submitted that the excavator falling under Chapter 8429 and Loader falling under CHH 8428 are capital goods falling under Chapter 84 of the CETA, 1985 and covered by the definition of capital goods under Rule 2(a)(A)(i) of the CCR and they are used for providing the output service of mining of minerals....

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....alco Industries Ltd. Vs. CCE, Allahabad [2003(161) ELT 346 (Tri. Del.)] ii. Calderys India Refractories Ltd. Vs. CCE, Aurangabad [2014(36) STR 102 (Tri. Mum.)] iii. Kamal Auto Finance Ltd. Vs. CST, Jaipur [2012(26) STR 46 (Tri. Del.)] iv. Jindal Vijayanagar Steel Ltd. Vs. CCE, Belgaum [2005(192) ELT 415 (Tri. Bang.)] [affirmed by Commissioner Vs. JSW Steel Ltd. -2015(323) ELT A73(SC)]. 5. On the other hand, the learned AR reiterated the findings of the impugned order and submitted that the appellant has taken irregular cenvat credit which is detected during the audit and therefore the appellant has suppressed the material fact from the Department with intent to evade payment of duty. 6. After considering the submissions both sides and ....