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2019 (3) TMI 1183 - AT - Service TaxCENVAT Credit - dumpers and tippers - Held that - Tribunal in the case of Ganta Ramanaiah Naidu 2009 (9) TMI 261 - CESTAT, BANGALORE has held that CENVAT Credit cannot be availed as these vehicles are registered with the authorities i.e. under Motor Vehicle Act and the rules made there under - decided against appellant. Time limitation - Held that - The appellant in this case could have entertained bonafide belief that they are eligible for CENVAT Credit on the dumpers and tippers - also there is nothing in the record to indicate that there was suppression, misstatement of fact with intent to evade tax - the entire demand on this point needs to be set aside as blatently hit by limitation. CENVAT Credit - invoices raised by the importers do not contain the details of the CVD paid - Held that - When the documents clearly indicate the receipt of capital goods, use of them within the mining area for rendering taxable output services, the denial of CENVAT Credit to the appellant on hyper technical ground as to the importer s invoices do not indicate the CVD amount which has been passed on, seems to be incorrect more so when co-relation of the documents is possible - credit cannot be denied on this ground. CENVAT Credit - input services rendered by ASIP Pvt Ltd. - Held that - It is seen from the ledger account that the appellant has been making payment to said service provider on account and as per running bill raised by the service provider along with tax. On the face of such clear cut documentary evidence, the adjudicating authority was in error by not accepting the same, to that extent, the adjudicating authority s orders is not sustainable. Appeal allowed in part.
Issues Involved:
1. Eligibility for CENVAT Credit on dumpers and tippers. 2. Eligibility for CENVAT Credit on importer’s invoices. 3. Eligibility for CENVAT Credit on input services rendered by ASIP Pvt Ltd. 4. Applicability of extended limitation period. 5. Imposition of penalties. Detailed Analysis: 1. Eligibility for CENVAT Credit on Dumpers and Tippers: The Tribunal examined whether the appellant could avail CENVAT Credit on dumpers and tippers used in mining services. The Tribunal referenced the case of Ganta Ramanaiah Naidu, where it was held that CENVAT Credit could not be availed on such vehicles as they are registered under the Motor Vehicle Act. Consequently, the Tribunal concluded that on merits, the appellant's case was not valid. However, the Tribunal found that the demand was time-barred since the show cause notice was issued after the prescribed period, and the appellant had declared the availment of CENVAT Credit in their monthly returns. The Tribunal cited the case of Saboo Coatings Ltd., which supported the appellant’s argument that non-disclosure of specific items in returns did not constitute suppression or misstatement with intent to evade tax. Therefore, the demand for reversal of CENVAT Credit on dumpers and tippers was set aside as time-barred. 2. Eligibility for CENVAT Credit on Importer’s Invoices: The Tribunal evaluated whether the appellant could avail CENVAT Credit based on invoices from Voltas Ltd., which imported machinery. The adjudicating authority had denied the credit on the grounds that Voltas' invoices did not explicitly indicate the amount of CVD paid. The Tribunal, however, found that the documents provided, including the bill of entry and challans, sufficiently evidenced the payment of CVD and the delivery of machinery to the appellant. The Tribunal held that the denial of CENVAT Credit on such technical grounds was incorrect, provided the co-relation of documents was possible. The Tribunal upheld the demand for CENVAT Credit availed prior to 01.06.2007, amounting to ?55,85,080/-, as the services rendered were not taxable before this date. The remaining credit of ?63,67,543/- was deemed eligible. 3. Eligibility for CENVAT Credit on Input Services Rendered by ASIP Pvt Ltd.: The Tribunal reviewed the eligibility for CENVAT Credit on services provided by ASIP Pvt Ltd. The appellant had provided invoices indicating the service tax registration number, billing period, and service tax charged. The Tribunal found that the documentation was clear and supported the appellant's claim. However, the Tribunal upheld the reversal of CENVAT Credit amounting to ?11,33,442/- for services availed prior to 01.06.2007, as the services were not taxable before this date. The remaining credit of ?1,12,53,713/- was held to be correctly availed. 4. Applicability of Extended Limitation Period: The Tribunal determined that the extended period for issuing the show cause notice was not applicable. The appellant had filed monthly returns declaring the availment of CENVAT Credit, and there was no evidence of suppression or misstatement of facts with intent to evade tax. Therefore, the demand for the reversal of CENVAT Credit on dumpers and tippers was set aside as time-barred. 5. Imposition of Penalties: Given that the major part of the CENVAT Credit was upheld and the demand on dumpers and tippers was set aside due to the limitation, the Tribunal found no grounds to impose penalties on the appellant. The penalties were consequently set aside. Conclusion: The Tribunal set aside the demand for reversal of CENVAT Credit on dumpers and tippers due to the limitation period. It upheld the CENVAT Credit on importer’s invoices and input services, except for the amounts availed prior to 01.06.2007. The penalties imposed were also set aside. The appellant was directed to reverse the confirmed demand of ?55,85,080/- and ?11,33,442/- with interest, and any excess amount deposited was to be refunded. The appeal was disposed of accordingly.
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