TMI Blog2013 (8) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... acie 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ANE Industries Pvt. Ltd., Chandrapur were undertaking service of site formation and clearance, excavation and earthmoving and demolition services and was registered with the department as such w.e.f. 23/07/2007. Acting on intelligence that the appellant was not discharging service tax liability, investigation was undertaken in August 2010 by conducting search of the premises of the appellant and also by recording statements of concerned officials who dealt with the matter. The investigation revealed that the appellant had undertaken the work of removal of old dump/embankment (OBR) by hiring of equipment such as HEMM, Tippers, Dozers, Drills, Water Sprinklers, including excavators for loading and transportation, dumping, spreading, dozing, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 stood excluded from the purview of capital goods during the relevant period. On conclusion of the investigation, show cause notice dated 04/10/2011 was issued proposing to demand service tax amounting to Rs. 2,39,45,381/- and proposing to deny CENVAT credit of Rs. 2,26,05,087/- apart from interest and penalties. The notice was adjudicated upon vide the impugned order and the demands were confirmed along with interest and penalties were imposed on the appellant. Hence the appellant is before us. 3. The learned counsel for the appellant makes the following submissions. 3.1 As regards the wrong availment of credit it is his contention that the tippers are actually classifiable under Chapter 84 of the Central Excise Tariff Act and not und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fraudulently availing CENVAT credit and no-filing of statutory returns as required under the law, and, therefore, the extended period of time has been rightly invoked in the show cause notice. As regards the classification of the service, he relies on the instruction issued by the CBEC vide circular No. B1/6/2005-TRU dated 27/07/2005 read with circular NO. 232/2/2006-CX.4 dated 12/11/2007 from where it can be seen that overburden removal, removal of waste prior to extraction of coal/minerals are rightly classifiable under the category of Site Formation and Clearance, Excavation and Earth Moving and Demolition Service' w.e.f. 16/06/2005. In view of the above the alternate classification under Cargo Handling Service raised by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes, chapter notes and Rules of Interpretation. The same issue has come up for consideration before the Bangalore Bench of this Tribunal in the case of Ganta Ramanaiah Naidu vs. Commissioner of Central Excise, Guntur 2010 (18) STR 10 wherein it was held that CENVAT credit on tippers, which are classified under Chapter 87 of the Central Excise Tariff, and on which excise duty has been discharged under that Chapter, cannot be taken as credit under the category of capital goods under Rule 2(a)(A)(i) of the CENVAT Credit Rules, 2004 as the said Rule permits credit to be taken only in respect of goods falling under Chapter 82,84,85 or 90 of the Central Excise Tariff Act. This decision of the Bangalore Bench of this Tribunal, which has examined t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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