9911796707
TMI Blog2019 (5) TMI 1428X X X X Extracts X X X X X X X X Extracts X X X X ..... There is an allegation that they have contravened the provisions of the act or rules but there is not even a mention that such contravention was done with an intent to evade payment of duty - the extended period of limitation cannot be indicated and the entire show cause notice is time barred and needs to be set aside on this ground alone. CENVAT Credit - capital goods or not - motor vehicles - HELD THAT:- The appellant could not have availed cenvat credit on the service tax paid on the hire charges for the vehicles in question. Usually, dumpers and tippers which are registered as motor vehicles and there is no contrary indication in the records. Once they are registered with the Motor Vehicles Department they cannot cease to be motor vehic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead as follows: "input service" means any service; (i) Used by a provider of taxable service for providing an output service; or (ii) Used by a manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products up to the place of the manufacture of final products and clearance of final products up to the place of removal. And includes...................but excludes services; (A) ............................................................. (B) Specified in sub-clauses (o) and (zzzz) of clause (105) of section 65 of the Finance Act, in so far as they relate to a motor vehicle which is not a capital goods. He submits that the case of the department is that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice is time barred as the show cause notice was issued in 2015 for the period April 2012 to June 2012 and there is no whisper of allegation in the show cause notice that the appellant had committed any fraud or colluded or suppressed facts or wilfully mis-stated or contravened any provisions of the act or rules with an intent to evade payment of duty. Although in para 6 of the show cause notice there is an allegation that they had contravened statutory provisions there is no indication or allegation that this was done with an intent to evade payment of duty. Thus, there is not even a mention of the intent let alone any evidence for such intent. Therefore, their appeal may be allowed and impugned order may be set aside. He relies o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from 01.07.2012 and the same were not applicable during the relevant period. Regarding the contention of the Learned Counsel that the Hon'ble Supreme Court Judgment in the case of WPIL (supra) extended the benefit of the exemption notification even for the gap between two periods, he would urge that the present case is not of an exemption but a definition of the capital goods as was applicable during the relevant period. He would further urge that now the question of interpretation of fiscal statute as well as exemption notification has now been decided by the Constitutional Bench of the Supreme Court in the case of Dilip Kumar & Co., [CA 3327 of 2017] in which it is held that all fiscal statutes should be strictly interpreted the way they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne. As far as the merits are concerned Rule 2(l) as it stood during the relevant period specifically excluded motor vehicles which are not capital goods. Therefore, on merits the appellant could not have availed cenvat credit on the service tax paid on the hire charges for the vehicles in question. Usually, dumpers and tippers which are registered as motor vehicles and there is no contrary indication in the records. Once they are registered with the Motor Vehicles Department they cannot cease to be motor vehicles thereafter. The specific inclusion of dumpers and tippers as capital goods under Cenvat Credit Rules, 2004 excluded goods falling under Chapter 87 of the Central Excise Tax Act. I therefore, find that on merits the demand is sustai ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
