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2017 (3) TMI 568 - AT - Service TaxCENVAT credit - capital goods - dumpers and tippers to provide output services - eligibility of credit on dumpers and tippers where supplier has classified under Chapter 84 - Held that - the main appellant herein is ineligible to CENVAT credit of the Central Excise duty paid on dumpers and tippers. At this juncture, it is relevant to record that learned Counsel brought to our notice that few invoices indicate that dumpers and tippers were classified manufacturers under Chapter 84. If that be so, CENVAT credit on those goods needs to be considered that they would fall under the definition of capital goods; to that extent we remit the matter for consideration of adjudicating authority to arrive at eligible CENVAT credit. Imposition of penalties u/s 77(2) of the FA, 1994 - Held that - penalty u/s 77(2) is not attracted in this case as there may be a genuine error in calculating the tax liability by the employees. Appeal allowed - decided partly in favor of appellant.
Issues Involved:
1. Short payment of service tax. 2. Ineligible availment of CENVAT credit on dumpers and tippers. 3. Penalties imposed on the main appellant and individuals. Detailed Analysis: 1. Short Payment of Service Tax: The core issue revolved around the short payment of service tax by the main appellant, who provided services to Western Coal Fields Ltd (WCFL). The adjudicating authority confirmed the demand for the short-paid service tax, along with interest and penalties. The appellant argued that they had reconciled the short payment through a detailed statement submitted to the adjudicating authority, which was not considered properly. The Tribunal found that there was indeed a short payment of service tax liability. The matter was remanded back to the adjudicating authority to verify the reconciliation statement and calculate the correct amount of short payment. The appellant was directed to discharge the short payment along with interest, and the penalties imposed were upheld but would be commensurate with the short payment determined. 2. Ineligible Availment of CENVAT Credit on Dumpers and Tippers: The appellant had availed CENVAT credit on dumpers and tippers, which were classified under Chapter 87 by the manufacturers. The Tribunal referred to the definition of capital goods under the Cenvat Credit Rules, 2004, which excludes Chapter 87. The Tribunal cited the case of Ganta Ramanaiah Naidu v. Commissioner of Central Excise, where it was held that CENVAT credit cannot be availed on dumpers and tippers. The Tribunal concluded that the main appellant was ineligible for CENVAT credit on dumpers and tippers classified under Chapter 87. However, if any invoices indicated classification under Chapter 84, the matter was remanded to the adjudicating authority to verify and consider those goods as capital goods eligible for CENVAT credit. 3. Penalties Imposed on the Main Appellant and Individuals: The Tribunal addressed the penalties imposed on the main appellant for ineligible availment of CENVAT credit. Referring to the Ganta Ramanaiah Naidu case, the Tribunal set aside the penalties, acknowledging that the appellant might have had a bona fide belief that dumpers and tippers used for providing output service were eligible for CENVAT credit. The Tribunal also set aside the personal penalty imposed on an individual under Section 77(2) of the Finance Act, 1994, as the error in calculating tax liability could be genuine. Conclusion: The appeals were disposed of with specific directions. The short payment issue was remanded for recalculating the correct liability, the ineligible CENVAT credit on dumpers and tippers was mostly upheld except for those possibly classified under Chapter 84, and the penalties on the main appellant and individuals were largely set aside. The Tribunal's decision was pronounced in court on 07.03.2017.
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