9911796707
TMI Blog2018 (5) TMI 1714X X X X Extracts X X X X X X X X Extracts X X X X ..... as issued for reversal of such Cenvat Credit availed by the appellant during the period 01.04.2011 to 31.03.2012 on the conclusion that these items are not capital goods as they are 'Motor Vehicles'. Respondent contested the issue on merits. The Adjudicating Authority after considering the provisions of rule 2(l) on input services definition and Rule 2(a) of Cenvat Credit Rules, 2004 came to conclusion that the said provisions which is dropped eligible to avail Cenvat Credit is not applicable in the respondent case. 4. Ld. Departmental Representative reiterates the grounds of appeal and takes the bench through the entire case records and submits that the findings of adjudicating authority are not in accordance with the scheme of eligibilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12), the assessee has availed cenvat credit of Rs. 19.62.900-/ on hiring of 'Cranes, Hydra Cranes excavators' under the 'Supply of tangible goods' services considering the same as 'input services'. The definition of 'input services' during this period is as under. (l) "input services" means any services,- (i) used by a provider of taxable service for providing an output service; or (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal, and includes services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defined at Section 2 (28) of Motor Vehicle Act, 1988. 27.2. However to disallow cenvat credit on such services, the other condition that "no credit is available to assessee on such 'motor vehicle' as capital goods" should also to be satisfied. To examine this aspect, the statutory provisions relating to the definition of capital goods (Rule 2(a) of CCR, 2004) as applicable for the period 2011-12 are produced as under. Rule 2(a) of CCR, 2004 (w.e.f. 01.04.2011) (A) The following goods, namely:- (i) All goods falling under Chapter 82, Chapter 84, Chapter 85, Chapter 90, heading No. 68.05 grinding wheels and the like, and parts thereof falling under heading 6804 of the First Schedule to the excise Tariff Act; (ii) Pollution control equip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he availment of service tax credit paid on hiring of cranes and excavators becomes irregular in light of the conditions stipulated as detailed above. 27.4. However, I find from the statutory provisions (Rule 2 (a) (A) (i) of CCR, 2004) that the capital goods include "all goods falling under Chapter 82, Chapter 84, Chapter 85, Chapter 90, heading No. 68.05 grinding wheels and the like, and parts thereof falling under heading 6804 of the First Schedule to Excise Tariff Act". Hence to find the eligibility of any goods (whether motor vehicle or otherwise) under 'capital goods definition' for the purpose of cenvat credit, the classification of such goods are to examined in respect of Central Excise Tariff Act, 1985. In this regard I find that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (B) of said rule has no bearing on their eligibility. Hence I find that 'Cranes, Hydra Cranes, Excavators' in relation to which the assessee had availed cenvat credit under Capital goods. I also find that once they are eligible to avail credit on cranes, excavators etc., under capital goods, the availment of service tax credit paid on hiring of cranes and excavators becomes eligible to them in the light of the conditions stipulated in the said rule and as detailed above. Further, I find that the 'supply of tangible goods/taxable services' received by the assessee by hiring 'Cranes, Hydra Cranes Excavators' were used by them for providing their output service of 'works contract service' which is a taxable service. Hence I hold that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
