TMI Blog2012 (7) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Directed to make deposit. - 1901 of 2010 - ST/790/2011 - Dated:- 24-11-2011 - Archana Wadhwa , Rakesh Kumar, JJ. For Appellant: Ms Sukriti Das, Adv . For Respondent Rep by: Shri R K Gupta, DR Per: Rakesh Kumar: The appellant have a plant for crushing and screening of iron ore lumps on job work basis for their clients. The appellant unload the iron ore lumps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of inputs and capital goods as defined in Rule 2 (k) and 2 (a) of Cenvat Credit Rules, 2004 and (b) they have availed service tax credit amounting to Rs. 5,11,883/- on the basis of documents which either do not contain the complete address of the service provider or the details of the input services provided. 1.1 The show cause notice was adjudicated by the Commissioner vide order-in-original dated 31/5/10 by which the Commissioner confirmed the Cenvat credit demand of Rs.31,70,330/- alongwith interest and imposed penalty of Rs.3,00,000/- on the appellant under Rule 15 of the Cenvat Credit Rules, 2004. The Cenvat credit demand confirmed was in respect of steel items namely M.S. Beams, Channels, HR Sheets, HR Plates, MS Angles, and M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... items have been wrongly disallowed, that as regards, the Cenvat credit of Rs.18,12,418/- disallowed in respect of tippers, this order of the Commissioner is incorrect as the tippers were being used for unloading of the iron ore lumps at the railway siding from the railway wagons, that since the tippers, an item of Chapter 87, were being used for Cargo Handling Service covered by Section 65 (105) ( zzr ), the same are covered by the definition of capital goods, that just because the appellant are registered for providing the taxable service of Business Auxiliary Service under Section 65 (105) ( zzb ), it cannot be said that they are not providing the Cargo Handling Service, as the service tax is being paid on the gross amount being charged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant has two components. The first component of Rs.13,57,912/- is in respect of MS Angles, Channels, Beams, Joists, HR Sheets, HR Plates. While according to the appellant these items had been used for fabrication for various machinery or parts thereof of their crushing plant, according to the Department, the appellant have not produced any evidence in this regard and that the photographs produced by them do not show that these items had been used for making supporting structures. Since, the dispute on this point is of facts and the same can be decided only at the time of regular hearing, at this stage, in our view, so far as the point regarding denial of Cenvat credit amounting to Rs.13 ,57,912 /- in respect of MS Beams, Channels, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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