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TMI Blog2019 (11) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... om this, it would stand to reason that the motor vehicles would be used for cargo handling as well as for other services within port. Having bought motor vehicles it is unlikely that the appellant would use exclusively them for one service and not for the other - As long as the appellant has used motor vehicles for rendering Cargo Handling Services on which they have paid service tax, they are entitled to CENVAT Credit on capital goods. The motor vehicles need not be used exclusively for providing cargo handling or other listed services. The mere fact that they have also used motor vehicles for some other purposes does not deprive them of their CENVAT Credit on motor vehicles. Appeal allowed - decided in favor of appellant. - SERVICE T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in sub clauses (f), (n), (o), (zr), (zzp), (zzt) and (zzw) of Clause (105) of Section 65 of the Finance Act. 4. It is a case of the Revenue that the motor vehicles of which the appellant has availed CENVAT Credit were not used for any of these services but were used for Port services which is their main service. Hence, they are not entitled to CENVAT Credit. 5. After following due process, the Ld. Asst. Commissioner by his Order-in-Original dated 07.03.2017 disallowed the CENVAT Credit on capital goods, amounting to ₹ 10,72,422/- on the motor vehicles availed by the appellant and ordered its recovery under Rule 14 of CENVAT Credit Rules, 2004, read with proviso to Section 73(1) of the Finance Act, 1994. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Handling Service and Port Service . He would submit that motor vehicles in question were used by them for transporting and shifting the goods from one place to another. Such activity falls under the definition of Cargo Handling Service if it is undertaken outside the Port and would fall under the definition of Port Services if it is undertaken inside the Port. The vehicles in question were used for both activities. However, the department seeks to deny them the CENVAT Credit on the ground that the major activity was in the Port and therefore the vehicles in question were used for Port services. It is further the assertion of the Department that they were not able to produce any evidence that the vehicles were used for Cargo Handling Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n used for rendering one of the services listed in Rule 2(a) (B) of CCR 2004. The appellant has failed to prove that the motor vehicles in question were used for providing Cargo Handling Service. Therefore, their appeal may be rejected. 8. I have considered the arguments on both sides and perused the records. 9. It is evident from the records that the appellant has rendered both Port service and Cargo Handling Service as well as several other services and paid service tax on these services. The vehicles in question were not used by them for providing these services. The show cause notice has not brought forth any evidence that the vehicles in question were not used for cargo handling services. When a show cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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