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TMI Blog2019 (12) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... vities. In such cases, the service should be classified as that service which gives its essential character. There is no provision in this Section or under any other provision to classify the same service under more than one head for different purposes such as one head for paying service tax and another to claim CENVAT credit. Undisputedly the appellant has only rendered clearing and forwarding services which does not entitle them to CENVAT credit on the motor vehicles in view of the specific exclusion in CENVAT Credit Rules 2004 - thus, the appellant has wrongly availed CENVAT Credit. Extended period of limitation - penalty - HELD THAT:- There are no reason for the appellant to have availed CENVAT credit when they were not rendering se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant. The term capital goods has been defined in Rule 2(a) of CENVAT Credit Rules 2004. Which excludes motor vehicles except when they are used for rendering services of courier agencies, tour operator services, rent a cab services, cargo handling agency, goods transport agency, outdoor catering agency and pandal and shamiyana agency. The relevant portion of Rule 2(a)(B) is as follows: motor vehicle registered in the name of provider of output service for providing taxable service as specified in sub-clauses (f), (n),(o),(zr), (zzp),(zzt) and zz(w) of clause (105) of section 65 of the Finance Act The services for which the CENVAT Credit on motor vehicles is available are as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Rule 14 of CENVAT Credit Rules 2004 read with proviso to Section 73(1) of Finance Act 1994. It was also proposed to recover CENVAT Credit availed on maintenance and repair of the aforesaid vehicles under Rule 14 of CENVAT Credit rules 2004 read with proviso to Section 73(1) of the Finance Act 1994. Further, it was proposed to charge interest under Section 75 and impose penalties under Section 78 of the Finance Act. 3. After following due process, learned adjudicating authority confirmed the demand along with interest and imposed penalties as proposed. Aggrieved, the appellant appealed to the first appellate authority who upheld the order of the lower authority and rejected the appeal. Hence this appeal. 4. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit. This issue must be examined in the light of Section 66F of the Finance Act 1994 which reads as follows: 66F. Principles of interpretation of specified descriptions of services or bundled services (1) Unless otherwise specified, reference to a service (herein referred to as main service ) shall not include reference to a service which is used for providing main service. [ Illustration : The services by the Reserve Bank of India, being the main service within the meaning of clause (b) of section 66D, does not include any agency service provided or agreed to be provided by any bank to the Reserve Bank of India. Such agency service, being input service, used by the Reserve Bank of India f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvolve more than one type of activities. In such cases, the service should be classified as that service which gives its essential character. There is no provision in this Section or under any other provision to classify the same service under more than one head for different purposes such as one head for paying service tax and another to claim CENVAT credit. Undisputedly the appellant has only rendered clearing and forwarding services which does not entitle them to CENVAT credit on the motor vehicles in view of the specific exclusion in CENVAT Credit Rules 2004. In view of the above, I find that the appellant has wrongly availed CENVAT Credit. As there are specific explicit provisions, I do not find any reason for the appellant to have ava ..... X X X X Extracts X X X X X X X X Extracts X X X X
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