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TMI Blog2024 (10) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... ers, the issue is no longer res integra in terms of the decision of this Tribunal in the case of CCE, CCG ST, DELHI III VERSUS M/S BHARMAPUTRA INFRASTRUCTURE LTD. [ 2018 (7) TMI 438 - CESTAT NEW DELHI] wherein this Tribunal observed ' Dumpers/Tippers are vehicles which are specially designed for earth moving purposes and are meant to be used in the mining area. In terms of the decision of Hon'ble Supreme Court (supra) they are not to be considered as motor vehicles. Consequently, the appellant would be eligible for Cenvat credit on dumpers / tippers as inputs which are used for providing the output service. However, the controversy stand resolved with effect from 22/06/2010 with issue of notification No. 25/2010-CE which has amended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount on which the appellant has taken the CENVAT Credit. Therefore, the appellant has not taken CENVAT Credit twice on the same invoice - The allegation made in the Show-Cause Notice is not sustainable. Consequently, no demand is sustainable on account of double availment of CENVAT Credit account by the appellant. Thus, no demand is sustainable against the appellant - no penalty is imposable on the appellant - the impugned order is set aside - appeal allowed. - HON BLE SHRI ASHOK JINDAL, MEMBER (JUDICIAL) And HON BLE SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL) For the Appellant : Shri Deepro Sen, Advocate MS. Taniya Roy, Advocate For the Respondent : Shri R. K. Agarwal, Authorized Representative ORDER Order : [ PER SHRI ASHOK JINDAL ] The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % in the first year and the balance 50% in the second year in contravention of Rule 4(2)(a) of the CCR. (iii) Availment of CENVAT Credit of Rs. 9,66,352/- twice on the strength of the same invoice. 2.2 The matter was adjudicated and the demands proposed in the Show Cause Notice came to be confirmed vide the impugned order. 2.3. Aggrieved from the said order, the appellant is before us. 3. The Ld. Counsel appearing on behalf of the appellant submits that the issue as to whether the appellant is entitled to avail CENVAT Credit on dumpers and tippers is no longer res integra in the light of the decision of this Tribunal in the case of CCE, CCG ST Delhi-III v. Brahmaputra Infrastructure Limited, 2018, (7) TMI, 438-CESTAT, New Delhi. 3.1. He fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of this Tribunal in the case of Brahmaputra Infrastructure Ltd. (Supra) wherein this Tribunal observed as under: - 7. The limited point in appeal is regarding the eligibility of Cenvat credit for tippers/dumpers Though the Department issued show cause notice proposing to deny such credit, the Adjudicating Authority has allowed the benefit of Cenvat credit both on merits as input under Rule 2 (k) as also on limitation. B. We note that the issue of eligibility of Cenvat credit on tippers and dumpers already stand decided on merit in favour of the respondent by this Tribunal in the case of Soumya Mining Ltd. (supra), in which the Tribunal has observed that :- 6. There is no dispute about the fact that earth moving equipment s such as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hassis to which a body has not been attached and a trailer, but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding thirty-five cubic centimetres. It has been further submitted that dumpers, rockers and tractors having been held to be not motor vehicles by the Hon'ble Supreme Court in the case of Belani Ores Ltd. Etc. vs. State of Orissa Etc (1975 AIR 17, 1975 SCR (2) 138) as follows: In the instant case there is evidence to show that the dumpers, rockers and tractors are exclusively used on the premises of the owners [159 E). The machines which are the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r CENVAT Credit Account. Therefore, in the light of the decision of the Hon ble Karnataka High Court, in the case of CCE, LTU v. Bill Forge Pvt. Ltd. 2012 (26) S.T.R. 204 (Karnataka), Wherein it has been held that if an assessee is maintaining sufficient balance in their CENVAT Credit account, there is no requirement to pay interest for the intervening period. Admittedly, in this case, the appellant was maintaining sufficient balance in their CENVAT Credit account. Therefore, we hold that they are not required to pay interest for the intervening period. Issue No. 3: 8. We find that there were two invoices namely, invoice numbers 902166 and 902171, of the same amount. Therefore, it is observed that the appellant has taken CENVAT Credit corre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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