9911796707
TMI Blog2017 (3) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... he tax liability by the employees. Appeal allowed - decided partly in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... his further submission that the entire demand is hit by limitation as there was no element of fraud, collusion or suppression of facts as the appellants were filing monthly return with the authorities indicating therein service tax liability. It is his submission that they have deposited the amounts as per the returns filed by them and at the most there could be an arithmetic error and they have not paid the amount of service tax which they have not received from WCFL. It is his further submission that penalties imposed on the appellant are also unwarranted as the said penalties are not imposable since the appellant already had filed monthly returns and it is only short payment of duty. He relied upon the decision of the Hon'ble High Court of Karnataka in the case of CCE v. ICL Sugars Ltd. 2011 (271) ELT 369 (Kar.) for the proposition that an asset, in this case dumpers and tippers are captively used goods, even if they are used, should not be denied. He also relies upon the Hon'ble High Court of Madras in the case of Commissioner of Income Tax v. Soft Beverages (Pvt.) Ltd. (unreported) MANU/TN/2744/2010 for the proposition that there was an amendment in respect of availme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital goods under Cenvat Credit Rules, 2004 is very specific and Chapter 87 is not covered under the definition of the capital goods. Hence the arguments put forth by the learned Counsel that these are capital goods are unacceptable. Further it was rightly pointed out by learned D.R. that the issue of availment of CENVAT credit on dumpers and tippers for providing of goods service of Site Formation and Clearance, Earth moving and Demolition, was before the Bench in the case of Ganta Ramanaiah Naidu (supra) (wherein one of us M.V. Ravindran was one of the Member) the Bench held as under:- "10. We have considered the submissions made at length by both sides and perused the records. The undisputed facts in this case are, the appellant is a provider of output service i.e. Site formation and clearance, excavation and earth moving and demolition services. It is also undisputed that the appellant had purchased the capital goods like excavators dozers, craters and tippers. On perusal of the records we find that the invoices issued by M/s. Volvo International Ltd., for the sale of such tippers to the appellant indicate chapter sub-heading as 87042390. This classification is done by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of provider of output service for providing taxable service as specified in sub-clauses (f) (n), (0), (zr), (zzp), (zzt) and (zzw) of clause (105) of section 65 of the Finance Act; (k) input means (i) all goods, except light diesel oil, high speed diesel oil and motor spirit, commonly known as petrol, used in or/in relation to the manufacturer of final products whether directly or indirectly and whether contained in the final product or not and includes lubricating oils, greases, cutting oils, coolants, accessories of the final products cleared along with the final product, goods used as paint, or as packing material, or as fuel, or for generation of electricity or steam used in or in relation to manufacture of final products or for any other purpose, within the factory of production; (ii) 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." 12. It can be noticed from the above reproduced definition the capital goods as to fall under categories as indicated in Rule 2(a)(A)(i) i.e. under Chapter 82,4 or 90 with the exclusion it can be seen that Chapter 87 has been kept o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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