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TMI Blog2012 (7) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... ks for despatch to their clients. For the entire activity, the main activity of which is crushing and sizing of the iron ore lumps, the appellant charge a consolidated amount from their customers. They obtained service tax registration for Business Auxiliary Service under sub-clause 65 (105) ( zzb ) readwith Section 65 (19) (v) of the Finance Act, 1994. The appellant were paying service tax on the gross amount received by them for this activity, which as mentioned above, in addition to the crushing of iron ore and sizing, also included unloading the lumps at the railway siding, loading the same into their tippers, their transportation to the factory and thereafter loading the processed ore on to the trucks. The department issued a show caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to the Commissioner are not covered by the definition of capital goods under Rule 2 (a) of the Cenvat Credit Rules as the output service being provided by the appellant was Business Auxiliary Service under Section 65 (105) ( zzb ) while in terms of the provisions of Rule 2 (a) (B) of Cenvat Credit Rules, 2004 motor vehicles registered in the name of the output service provider for providing taxable services specified under Clause (f), (m), (o), ( zzp ), ( zzt ) and ( zzw ) of Clause 105 of Section 65 of the Finance Act, 1994 are only specified as capital goods. 1.2 Against the above order of the Commissioner, this appeal alongwith stay application have been filed. 2. Heard both the sides in respect of stay application. 2.1 Ms. Suk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case and, hence, the requirement of pre-deposit of Cenvat credit demand, interest and penalty may be waived for hearing of the appeal and recovery thereof may be stayed till the disposal of the appeal. 2.2 Shri R.K. Gupta, the learned Departmental Representative, opposed the stay application by reiterating the findings of the Commissioner (Appeals) in the impugned order and emphasised that the appellant have not produced any evidence that the M.S. Beams, Channels, Angles, HR Sheets, HR Plates, MS Joists had been used for fabrication of machinery covered under Chapter 84 or 85 of the Tariff and that since the appellant were registered only for Business Auxiliary Service under Section 65 (105) ( zzb ) readwith Section 61 (19) (v) of the Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f prima facie view that the appellant's activity is processing of iron ore lumps received by them and is covered by Section 65 (105) ( zzb ) readwith Section 65 (19) (v) of the Finance Act, 1994. The other activities as unloading of iron ore lumps at the railway siding, arranging its transportation to the factory and loading of the processed or into the trucks are auxiliary activity and unless the appellant's contract with their clients are mixed contract prescribing separate races for their different activities, their activity would have to be classified as Business Auxiliary Service only and in that event the tipper used by them cannot be treated as capital goods. 6. In view of the above discussion, this is not the case for total waiver. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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