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TMI Blog2015 (10) TMI 2414X X X X Extracts X X X X X X X X Extracts X X X X ..... uo;CESTAT‟) in Appeal No. ST/58883/2013. 2. The background to the present appeal is that on 22nd October 2009 the Joint Commissioner, Service Tax, New Delhi issued a show cause notice (SCN) under Section 73 of the FA to the Respondent requiring it to show cause as to why it should not be asked to pay service tax for wrongly having availed Cenvat credit in the sum of Rs. 39,99,705 during the period 2005-06 and 2008-09, during which period the Respondent was found to have provided 'airport services' taxable under Section 65 (105) (zzm) of the FA. The Respondent had been claiming that it was providing cargo handling services taxable under Section 65(105) (zr) of the FA. The premise of the SCN on this aspect was that during the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd May 2007 only exempts services provided to a foreign diplomatic mission or consular post in India; and that since it was not providing airport services, the claim of Cenvat credit as regards the toilet cart and water cart deployed by the Respondent for cargo handling services ought to be allowed as they were capital goods. 5. It must be mentioned at the outset that the Court is not examining the question of maintainability in the present appeal since the matter has been heard on merits. 6. The Court proposes to examine the following two specific questions urged by the Appellant: (i) Whether Respondent herein can be allowed utilization of Cenvat Credit for payment of service tax in excess of 20% limit stipulated under Rule 6(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng services having been raised on the German Embassy and the payments having been made by the German Embassy, the nature of services rendered was an exempted service. The Court notices that the specific contention of the Respondent was that cargo handling services were provided by it for the flights of the German Air Force and not to the German Embassy. In the light of that contention, it was incumbent on the Revenue to have placed some material on record to prove that services were provided not to the German Air Force but to the German Embassy. Therefore, the conclusion of the CCE(A) does not appear to have any factual basis. 11. It may be noticed at this stage that under Section 65(105) (zzm) of the FA as applicable prior to 1st July 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT rightly overturned the orders of both the Joint Commissioner, Service Tax and CCE (A). 13. On the second issue the Court is not satisfied that there is anything to show that toilet cart and water cart were not used by the Respondent in the ground handling operations at the airport. It is a fact that the said carts were not having any registration with motor vehicles authority and could not have been used on roads as motor vehicles. 14. Learned counsel for the Appellant placed reliance on the decision of the Supreme Court in Automotive Manufacturer (P) Ltd v. Government of Andhra Pradesh (1972) 1 SCC 125, where in the context of the Andhra Pradesh Motor Vehicles Taxation Act 1963, the Court was examining whether a chassis can attract th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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