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TMI Blog2018 (5) TMI 1714X X X X Extracts X X X X X X X X Extracts X X X X ..... the said provisions which is dropped eligible to avail Cenvat Credit is not applicable in the respondent case and needs to be upheld. The Adjudicating Authority has held that the allegation in the SCN that since ‘Cranes, Hydra Cranes, Excavators’ are motor vehicles the same are not eligible capital goods is not acceptable since the eligibility under capital goods to be decided based on the definitions available in the CCR, 2004 read with Central Excise Tariff Act, 1985 - Further it was found from the Rule 2(B) of CCR, 2004 which is referred in the SCN that the said rule does not exclude any goods but only including certain motor vehicles as eligible capital goods, in addition to the goods mentioned at clause (A) of said rule - once the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inition and Rule 2(a) of Cenvat Credit Rules, 2004 came to conclusion that the said provisions which is dropped eligible to avail Cenvat Credit is not applicable in the respondent case. 4. Ld. Departmental Representative reiterates the grounds of appeal and takes the bench through the entire case records and submits that the findings of adjudicating authority are not in accordance with the scheme of eligibility to avail Cenvat Credit of the service tax paid on supply of tangible goods for use. It is his submission that the Adjudicating Authority s observations in context of Rule 2 (f) of Cenvat Credit Rules is not applicable the instant case; the Adjudicating Authority has held that goods for example Cranes, Hydra Cranes, Excavators, Mot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by a provider of taxable service for providing an output service; or (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal, and includes services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory provisions relating to the definition of capital goods (Rule 2(a) of CCR, 2004) as applicable for the period 2011-12 are produced as under. Rule 2(a) of CCR, 2004 (w.e.f. 01.04.2011) (A) The following goods, namely:- (i) All goods falling under Chapter 82, Chapter 84, Chapter 85, Chapter 90, heading No. 68.05 grinding wheels and the like, and parts thereof falling under heading 6804 of the First Schedule to the excise Tariff Act; (ii) Pollution control equipment; (iii) Components, spares and accessories of the goods specified at (i) and (ii); (iv) Moulds and dies, jigs and fixtures; (v) Refractories and refractory materials; (vi) Tubes and pipes and fittings thereof; and (vii) Storage t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) (A) (i) of CCR, 2004) that the capital goods include all goods falling under Chapter 82, Chapter 84, Chapter 85, Chapter 90, heading No. 68.05 grinding wheels and the like, and parts thereof falling under heading 6804 of the First Schedule to Excise Tariff Act . Hence to find the eligibility of any goods (whether motor vehicle or otherwise) under capital goods definition for the purpose of cenvat credit, the classification of such goods are to examined in respect of Central Excise Tariff Act, 1985. In this regard I find that the classification of Cranes, Hydra Cranes, Excavators falls under Chapter 84 of Central Excise Tariff Act, 1985 as detailed below even though the same are mounted on work trucks. Tarif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 2 (a) (A) (i) of CCR, 2004, the clause (B) of said rule has no bearing on their eligibility. Hence I find that Cranes, Hydra Cranes, Excavators in relation to which the assessee had availed cenvat credit under Capital goods. I also find that once they are eligible to avail credit on cranes, excavators etc., under capital goods, the availment of service tax credit paid on hiring of cranes and excavators becomes eligible to them in the light of the conditions stipulated in the said rule and as detailed above. Further, I find that the supply of tangible goods/taxable services received by the assessee by hiring Cranes, Hydra Cranes Excavators were used by them for providing their output service of works contract service which is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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