2019 (5) TMI 1428

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....er the same under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11A(54) of Central Excise Act, 1944 along with interest. It is also proposed to impose penalty upon them under Rule 15(2) of CCR, 2004 read with Section 11AC. The period covered in the show cause notice is April 2012 to June 2012. The credit in dispute is the credit of service tax paid on supply of tangible goods and services (renting of poclainers and tippers). The lower authority, after following due process, confirmed the demand and imposed penalty as proposed. On appeal the first appellate authority upheld the order of the lower authority. Hence this appeal. 3. Learned Counsel for the appellant submits that Rule 2(l) of CCR, 2004 upto 30.06.2012 read as follows: ....

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.... as their activity is concerned and hence are not extended by caluse (B) of Rule 2(l). He also argues that dumpers and tippers were specifically covered in the definition of capital goods under CCR, 2004 with effect from 01.07.2012. Although the period in question is prior to this date the benefit of the same should also be extended to them. In the judgment of the Hon'ble Apex Court in the case of W.P.I.L. Ltd., [2005 (181) ELT 359 (S.C.)] he would argue that where an exemption notification was withdrawn for some period and which was restored subsequently it also applies to the intervening period. The same logic should apply to the definition of capital goods as far as dumpers and tippers are concerned also. iii) The show cause notice is....

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....hin the mine need to be registered under the Motor Vehicle Act and the Hon'ble Apex Court held that merely because vehicles are also motorable they need not be registered because they operate within the mines. In contrast the dumpers and tippers which are used in the present case and in factories are all registered under Motor Vehicles Act and have registration numbers and therefore the two cannot be compared. After obtaining motor vehicles registration they cannot claim that they are not motor vehicles. Regarding the second argument that the dumpers and tippers are capital goods as per the definition of capital goods under CCR, 2004 he would submit that these were included in the definition of capital goods only with effect from 01.07.2012....

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.... considered the arguments on both sides an perused the records. I find that the show cause notice covered the period April 2012 to June 2012 but was issued on 09.02.2015 well beyond the normal period of limitation. There is nothing in the show cause notice to show that the appellant has committed any fraud or had colluded or had mis-stated any facts or suppressed facts. There is an allegation that they have contravened the provisions of the act or rules but there is not even a mention that such contravention was done with an intent to evade payment of duty. I, therefore, find that the extended period of limitation cannot be indicated and the entire show cause notice is time barred and needs to be set aside on this ground alone. As far as th....