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2013 (8) TMI 171 - AT - Service TaxClassification of Services – Instead of “Site Formation and Clearance, Earth Moving and Demolition” service, it should be classified as ‘Cargo Handling Service' and he relies on the decision of this Tribunal in the case of Gangadhar Bulk Movers Pvt. Ltd. vs. Commissioner of Central Excise, Nagpur [ 2011 (11) TMI 358 - CESTAT, MUMBAI ] – Held that:- Contention regarding classification has not been raised before the adjudicating authority. Besides, overburden and wastage for removal cannot be considered as cargo. Cargo usually refers to goods or freight carried by a ship or vessel - Prima facie this contention is not convincing – Decided against the Assessee. Eligibility of Cenvat Credit - Excise duty on the tippers had been discharged under Chapter 87 by the manufacturer of the vehicles – Held that:- Appellant cannot claim and seek to change the classification from Chapter 87 to Chapter 84 based on the Tribunal decision in the case of Dipco Metal Fabricators Pvt. Ltd. [2006 (1) TMI 313 - CESTAT, MUMBAI] - In the said decision, the only reason given for classification of the tippers under Chapter 84 is that, similarly placed manufacturers in the Mysore Commissionerate has classified the goods under Chapter 84 and therefore, the items should be classified under Chapter 84 - Inasmuch as classification of a product cannot be decided by reference to classification elsewhere but in accordance with the description given in the tariff, the section notes, chapter notes and Rules of Interpretation – Decided against the Assessee. Extension of limitation period – Held that:- There is a huge variation in the amount of consideration received by the appellant as declared in the ST-3 returns and as certified by the recipient themselves. While the figures of actual receipt are Rs. 36,80,16,556/- vis-ŕ-vis Rs. 23,83,30,290/- as declared in the ST-3 returns for the period 2008-09 to 2010-11 (upto June 2011) - Appellants has mis-declared the consideration received for the services rendered – Extension of limitation period applicable – Decided against the Assessee. Held that:- Appellant is directed to make a pre-deposit of Rs. 2.8 crores within a period of eight weeks which is approximately the amount of ineligible credit availed by the appellant.
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