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TMI Blog2019 (4) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... g the relevant period. Time Limitation - Held that:- The SCN which was issued on 07/11/2014 was for the period from May 2011 to May 2012 and the Department has not brought any evidence on record to show that the appellant has suppressed any material fact with intent to evade payment of duty. Moreover, audit was conducted and report was made available on 07/05/2012 and all the transactions have been recorded in the books of accounts and are verified by the audit party - there cannot be any allegation of suppression with intent to evade payment of duty and therefore invocation of extended period of limitation is not sustainable in law. Appeal allowed - decided in favor of appellant. - E/20937/2018-SM - Final Order No. 20313/2019 - Date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed in Order-in-Original dt. 29/02/2016. Aggrieved by the said order, appellant filed appeal before the Commissioner(Appeals) on merits as well as on limitation. In the appeal before the Commissioner(Appeals), the appellant also submitted that while the show-cause notice and adjudication was on eligibility of hiring of excavators, tippers and wheel loaders, it was noticed that in annexure to the show-cause notice that an amount of ₹ 1,75,339/- paid towards cargo handling service provided by M/s. Shri Shivayogeshwara Transport Co. which was indisputably eligible for credit was also included while quantifying the demand and confirmed. The appellant submitted that this disallowance of credit of ₹ 1,75,339/- was patently erron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definition of input service as amended during the relevant period excludes service as defined in Section 65(105)(zzzzj) (supply of tangible goods) in respect of motor vehicles except when the motor vehicle is used for the provision of taxable service for which the CENVAT credit on motor vehicles is eligible as capital goods. He further submitted that the perusal of impugned order passed by Commissioner(Appeals) would show that Clause (B) under Rule 2(l) of CCR has not been taken into consideration in full. The portion which carves out the exception in respect of motor vehicles used only a part of the said Clause B has been considered. The portion providing the exception to services used for providing taxable service has been omitted wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce is eligible for CENVAT credit in terms of Rule 2(l)(B) of CCR, 2004 during the relevant period. He further submitted that eligibility of dumpers and tippers for CENVAT credit as capital goods stands settled in favour of the assessee. Hon ble Supreme Court in the case of Belani Ores Ltd. etc. Vs. State of Orissa [1975 AIR 17] has held that tippers and excavators are not motor vehicles. This decision has been subsequently followed in the following decisions of the Tribunal:- i. Soumya Mining Ltd. Vs. CCE, Raipur [2017-TIOL-2432- CESTAT-DEL] ii. CCE, CCG ST, Delhi Vs. Brahmaputra Infrastructure Ltd. [2018-TIOL-3834-CESTAT-DEL] 4.3. Learned counsel also submitted that the entire demand is barred by limitation because the show-cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose they have hired excavators, wheel loaders and tippers and have paid service tax to the service provider and has taken the credit which according to the audit party, the appellant is not eligible and at the instance of audit, th appellant was directed to reverse CENVAT credit of ₹ 10,41,788/- along with interest of ₹ 2,78,134/-. The CENVAT credit amount of ₹ 10,41,788/- also includes an amount of ₹ 1,75,339/- which was paid towards cargo handling service provided by M/s. Shri Shivayogeshwara Transport Co. which was very much eligible for credit as cargo handling service but the same was also denied. Further I find that both the authorities below have not considered the full definition of input service under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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