2014 (11) TMI 793 - AT - Service Tax

CENVAT Credit - Availment of credit on tippers and dumpers - Trippers and dumpers not considered as inputs or capital goods - Exemption under Notification No.25/2010-CE(NT) - Retrospective effect of amendment done in Notification - Held that - The said notification is very clear as inserting sub-clause C in Rule 2 of CENVAT Credit Rules, 2004 and nowhere it mentions that the said notification is of retrospective nature. We find that on an identical issue in the case of Ganta Ramanaiah Naidu (2009 (9) TMI 261 - CESTAT, BANGALORE ), co-ordinate Bench had taken a view that Central Excise duty paid on dumpers and tippers is not eligible to be availed as CENVAT Credit before amendment. appellant has not made out a strong prima facie case for complete waiver of the pre-deposit of the amounts involved only on limitation ground - Partial stay granted.

Summary

Issues:
- Eligibility of CENVAT Credit on dumpers and tippers for the period May 2008 to March 2009
- Bonafide belief of the appellant regarding CENVAT Credit eligibility
- Application of Notification No.25/2010-CE(NT) retrospectively
- Pre-deposit waiver request by the appellant

Analysis:

Eligibility of CENVAT Credit on dumpers and tippers:
The appellant sought waiver of pre-deposit of an amount confirmed as ineligible CENVAT Credit for Central Excise duty paid on dumpers and tippers used for mining services. The appellant argued that these vehicles were capital goods during the relevant period and should be eligible for CENVAT Credit. However, the Tribunal found that the Notification No.25/2010-CE(NT) did not explicitly state retrospective application, and a previous case had ruled against availing CENVAT Credit on dumpers and tippers before the amendment.

Bonafide belief of the appellant:
The appellant claimed a bonafide belief in being eligible for CENVAT Credit on the duty paid for dumpers and tippers. The Tribunal acknowledged the need to examine this belief based on the facts and documents available. However, the Tribunal decided that a thorough evaluation of this claim would require more time and deferred the final decision on this issue.

Application of Notification No.25/2010-CE(NT) retrospectively:
The appellant argued that Notification No.25/2010-CE(NT) should apply retrospectively to allow CENVAT Credit for the period in question. However, the Tribunal noted that the notification did not explicitly mention retrospective application, leading to the denial of the appellant's request for waiver based on this ground.

Pre-deposit waiver request by the appellant:
The Tribunal, after considering both sides' submissions and examining the records, found that the appellant did not establish a strong prima facie case for a complete waiver of the pre-deposit amounts solely on the limitation ground. As a result, the Tribunal directed the appellant to pre-deposit a specific amount within a specified timeframe and subject to compliance, allowed the waiver of the remaining balance amounts involved, staying the recovery until the appeal's final disposal.

In conclusion, the Tribunal's judgment addressed the issues of CENVAT Credit eligibility, bonafide belief, retrospective application of notifications, and the appellant's pre-deposit waiver request, providing a detailed analysis and decision on each aspect of the case.