TaxTMI 
TaxTMI 
2024 (3) TMI 801
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....tions No. 50249 of 2016 has been filed by the assessee in Revenue's appeal. The assessee's Appeal No. 54525 of 2015 is assailing the denial of CENVAT Credit of Rs. 32,04,622/- and imposition of penalty of Rs. 7,46,081/- under rule 15 of CCR and Rs. 5000/- under rule 78 of the Finance Act. 2. The assessee was providing site formation and clearance, excavation, earth moving and demolition services and mining services under section 65 (105) (zzza) of the Finance Act and was paying service tax. It was also providing site excavation service at some road sites which was exempted from payment of service tax by Notification No. 17/2005-ST dated 07.06.2005. Thus, the assessee was providing both taxable and exempted services. 3. A Show cause notice [SCN] dated 05.08.2014 was issued to the assessee seeking to deny CENVAT credit to the assessee on various inputs and capital goods invoking extended period of limitation and proposing to impose penalty. These proposals were decided by the Commissioner by the impugned order partly in favour of the assessee and partly against it. 4. The relevant period is April, 2010 to March 2013 and the normal period of limitation to issue the SCN under ....
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....movable capital goods depending upon their requirement for exempted service as well by utilizing such goods for a very short period as convenient to them. Further the operandi adopted by the assessee is also a colourable device as the same was not adopted for business exigency but to avail Cenvat credit on all of the equipments purchased by them whether for taxable service or exempted service. As held by Hon'ble Supreme Court in M/s Mcdowel and Company Ltd. v/s Commercial Tax Officer, it appears that such colourable device cannot be taken as correct. It also appears that in the given facts meaning of the word exclusively cannot be read in isolation but it draws its colour from the word 'used' included in Rule 2 of Cenvat Credit Rules, 2014 and meaning of the word 'used' should be considered as predominantly or principally. On analyzing the chart submitted by the assessee about deployment of various equipments, it is observed that out of 82 Tippers, 38 Tippers were deployed to the non-taxable site for more than 50% of their utilization period. Further it also appears that availability of Cenvat credit in respect of any capital goods is to be looked into at the ti....
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....r the scheme of the law, the service provider is required to determine the admissibility of cenvat credit, classification of their service and payment of service tax on self-assessment basis which they failed to do. In the case of Union of India vs Rajasthan Spinning & Weaving Mills, the Hon'ble Supreme Court observed that in case the non-payment of duty if intentional and by adopting any means as indicated in the proviso then the period of notice and a priory the period for which duty can be demanded gets extended to five years. Therefore, the provisions of Rule 14 of the Cenvat Credit Rules 2004 readwith proviso to Section 73(1) of the Finance Act 2004 are applicable for recovery of service tax." 8. We have heard learned counsel for the assessee and learned authorized representative appearing for the department and perused the records. 9. Before examining the merits of the case, we proceed to examine invocation of extended period of limitation because if any portion of the demand does not fall within limitation, it is not necessary for us to examine the merits of that demand. 10. According to the learned counsel for the assessee, the department has wrongly invoked ex....
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....since the ST-3 returns are to be filed online, there is no scope for assessee to add any extra information. If the return calls for aggregate amount of CENVAT credit availed without the invoice-wise breakup, there is no scope for the assessee to provide invoice wise details, let alone, any obligation to do so. We also find that there is no requirement or provision under the Act to seek clarification from the Department. As far as self-assessment is concerned, it is followed by every assessee in service tax and operating under self-assessment is not a ground on which the extended period of limitation can be invoked. For these reasons, we find the demand of CENVAT credit for the period up to 30.06.2012 needs to be set aside on this ground of limitation alone. 14. We have also heard both sides on the merits of the demand. 15. As far as the revenue's appeal is concerned it is aggrieved by the Commissioner dropping a demand of Rs. 53,34,878/- on capital goods, namely, 38 tippers and 4 excavators. It is also aggrieved by the Commissioner allowing the CENVAT credit of Rs. 5,45,741/- on grader RC-RJ-12 EA-1460 which was received by the appellant in January, 2010 and put to use at the....
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....der the CCR with respect to capital goods is that those capital goods which are used exclusively for providing exempted services will not be legible for CENVAT credit. There is no limitation on availing CENVAT credit in respect of capital goods which are used for providing both taxable services and exempted services. There is also nothing in the law which prescribes as to when the capital goods should be put to use in rendering taxable services. The appellant had availed CENVAT credit on the capital goods which were received and used in providing both taxable and exempted services. The impugned order wrongly demanded interest for the period between the date on which the CENVAT credit was taken and the date on which the capital goods were used for providing taxable services. 20. Learned authorized representative appearing for the department supports the impugned order. 21. We find force in the contention of the assessee insofar as the order for recovery of interest on this amount of CENVAT credit is concerned. Learned counsel for the assessee is correct in his assertion that CENVAT credit can be availed once the capital goods are received and there is no prescription under the....
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....g the assessee had submitted that after March, 2013, i.e., after the period of SCN, these capital goods were put to use in providing taxable services also. However, the Commissioner denied CENVAT credit on these capital goods. Learned counsel also asserted that the demand on this ground was also time barred. 28. Learned authorized representative for the revenue supports the impugned order. 29. We have considered the submissions. The Commissioner was correct in stating that as per rule 6(c) of CCR no CENVAT credit can be availed on capital goods which are used exclusively for providing exempted services. However, it is the assertion of the assessee that after the show cause notice was issued, the capital goods were indeed, used for providing some taxable service also this submission was not accepted by the learned Commissioner. Notwithstanding this fact, we find that the demand is time barred. It, therefore, could not have been sustained in any case. It is set aside on the ground of limitation. PENALTIES 30. The appellant is also contesting the imposition of penalty of Rs. 7,46,081/- under rule 15 of the CCR read with section 78 of the Finance Act 1994 in respect of the ....