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2019 (4) TMI 428

ut service under Rule 2(l) during the relevant period which has resulted in the present proceedings. Further in view of the various decisions cited, the excavators, loaders and tippers used for providing taxable service of mining of minerals are capital goods as defined in Rule 2(l) of CCR 2004 and hiring of the said capital goods which is a taxable service, is eligible for CENVAT credit in terms of Rule 2(l)(B) of CCR, 2004 during the relevant period. - Time Limitation - Held that:- The SCN which was issued on 07/11/2014 was for the period from May 2011 to May 2012 and the Department has not brought any evidence on record to show that the appellant has suppressed any material fact with intent to evade payment of duty. Moreover, audit w .....

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e appellant to reverse the entire CENVAT credit of ₹ 10,41,958/- along with interest ₹ 2,78,134/-. Subsequently, the Additional Commissioner of Central Excise issued show-cause notice dt. 7/11/2014 proposing to disallow and demand CENVAT credit of ₹ 10,41,788/-, appropriate the amount already paid and to impose penalty. After following the due process, the Jt. Commissioner confirmed in Order-in-Original dt. 29/02/2016. Aggrieved by the said order, appellant filed appeal before the Commissioner(Appeals) on merits as well as on limitation. In the appeal before the Commissioner(Appeals), the appellant also submitted that while the show-cause notice and adjudication was on eligibility of hiring of excavators, tippers and wheel .....

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as applicable for the period up to 31/03/2011 and thereafter the definition of input service as amended vide Notification No.3/2011-CE(NT) dt. 01/03/2011 and applicable w.e.f. 01/04/2011 to 31/03/2012 and also the definition of input service as amended vide Notification No.18/2012-CE(NT) dt. 17/03/2012 as applicable w.e.f. 01/04/2012 to 30/06/2012. It is his further submission that the definition of input service as amended during the relevant period excludes service as defined in Section 65(105)(zzzzj) (supply of tangible goods) in respect of motor vehicles except when the motor vehicle is used for the provision of taxable service for which the CENVAT credit on motor vehicles is eligible as capital goods. He further submitted that the peru .....

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s falling under Chapter 84 of the CETA, 1985 and covered by the definition of capital goods under Rule 2(a)(A)(i) of the CCR and they are used for providing the output service of mining of minerals classified under Section 65(105)(zzzy) of Finance Act, 1994 from 01/06/2007 onwards. It is his further submission that hiring of said capital goods which is a taxable service is eligible for CENVAT credit in terms of Rule 2(l)(B) of CCR, 2004 during the relevant period. He further submitted that eligibility of dumpers and tippers for CENVAT credit as capital goods stands settled in favour of the assessee. Hon ble Supreme Court in the case of Belani Ores Ltd. etc. Vs. State of Orissa [1975 AIR 17] has held that tippers and excavators are not motor .....

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ted during the audit and therefore the appellant has suppressed the material fact from the Department with intent to evade payment of duty. 6. After considering the submissions both sides and perusal of the material on record, I find that the appellants are engaged in providing mining of minerals service to M/s. Mysore Minerals Ltd. and for that purpose they have hired excavators, wheel loaders and tippers and have paid service tax to the service provider and has taken the credit which according to the audit party, the appellant is not eligible and at the instance of audit, th appellant was directed to reverse CENVAT credit of ₹ 10,41,788/- along with interest of ₹ 2,78,134/-. The CENVAT credit amount of ₹ 10,41,788/- also .....

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