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TMI Blog2010 (2) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the Appeal. 1.1 The Appellant is a company engaged in the business of development, customization & implementation of computer software, business consulting, imparting user training to implemented software and hardware testing services. They have taken a centralized service tax registration for its various branches in India. The appellant have taken capital goods Cenvat credit on various goods used for providing taxable services. A show cause notice dated 31-3-08 was issued to the Appellant for - (a) demand of capital goods Cenvat credit amounting to Rs. 80,20,528/- alongwith interest, on certain item, under Rule 14 of the Cenvat Credit Rules, 2004, and (b) imposition of penalty on the Appellant under Rule 15(1) of the Cenvat Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disentitle the Appellant from availing Cenvat credit based on correct clarification, that in this regard, reliance is placed on Tribunal's judgments in cases of - (a) Auto Field Engineers Pvt. Ltd. v. CCE reported in 1995 (78) E.L.T. 290, (b) CCE v. Tainwala Chem. & Plastics (I) Pvt. Ltd. reported in 2000 (123) E.L.T. 593; (c) CCE v. Electrical Products of India reported in 1997 (108) E.L.T. 648 and (d) Maxon India Ltd. v. CCE reported in 1997 (95) E.L.T. 532, that even if the items in respect of which the Cenvat credit has been denied, are not covered by the definition of capital goods, the same would be eligible for Cenvat credit as inputs, that the show cause notice does not allege a single instance when the Appellant was guilty of frau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sclosed to the Department and therefore, extended period has been correctly invoked and penalty has been rightly imposed; that just because the central excise records of the unit have been audited by the Department officers, it does not mean that all the records had been checked and that in view of this, the Department has a strong prima facie case and this is not a case for waiver from the requirement of pre-deposit of Cenvat credit demand, interest and penalty and stay on its recovery. 3. We have carefully considered the submissions from both the sides and perused the records. The Appellant had taken capital goods Cenvat credit amounting to Rs. 79,11,624/- in respect of FACT-10 Meter R.F. Shielded in EMC Chamber" received from the suppli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under sub-heading 73089080 and it is only at stage of receipt of the goods by the Appellant that the classification is sought to be challenged. It is settled law that while considering Cenvat credit to the receiver of the duty paid excisable goods, the assessment of duty at the manufacturer/supplier's end cannot be reopened. Hon'ble Supreme Court in the case of Sarvesh Refractories(P) Ltd. v. CCE reported in 2007 (218) E.L.T. 488 (S.C.), while considering the Appellant's plea that an item called "Loadall" received by them under the manufacturer - supplier's invoice manufacturing the same as falling under tariff heading 84.29 is actually classifiable under heading 84.27 and hence covered by the definition of "capital goods", as given in Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdictional central excise authority/customs authority at the manufacturer's/importer's end can be changed while considering Cenvat credit to the receiver of the goods by the jurisdictional central excise authority at the receiver's end. 4.1 It has been pleaded that if the goods covered by invoice No. 01 dated 29-9-06 are not covered by the definition of "capital goods", the same will be covered by the definition of 'input' in Rule 2(K)(ii), as with regard to output service, the term "input" covers - "all goods, except light diesel oil, high speed diesel oil, motor spirit, commonly known as petrol and motor vehicles used for providing any output service" we are of prima facie view that this plea of the Appellant is not correct as - (a) Di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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