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TMI Blog2025 (2) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No. 25/2010-CE which has amended the Cenvat Credit Rules to allow Cenvat credit for dumpers / tippers registered in the name of service provider for providing taxable service for providing site formation etc.' The definition of capital goods in clause (C) was inserted to provide availment of Cenvat credit on Dumpers/Tippers provided such dumpers and tippers are registered in the name of the service provider. When there was ambiguity in the said Rules, the Tribunal and other Appellate forum allowed the credit on such dumpers/tippers following the Apex Court decision in the case of Belani Ores Ltd. Etc. vs. State of Orissa Etc. [1974 (9) TMI 115 - SUPREME COURT]. However, once a specific provision had been inserted in the Cenvat Credit Rules, 2004, it would have to be given a strict interpretation. In the present case, it is noted that the dumpers/tippers on which Cenvat credit had been availed, was not registered in the name of the appellant, as it was in the name of SREI Equipment Finance Pvt Ltd. As the aforesaid notification clearly laid down that such credit could be availed only if the dumpers/tippers were registered in the name of the service provider, the same was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and remaining 50% amount of Cenvat Credit was availed in the month of April, 2012. From 22.6.2010, the Cenvat Credit on dumper or tipper falling under Chapter Heading 87 and its component were available to output service provider providing service of site formation and clearance, excavation, mining service subject to condition that such dumpers or tippers are registered in the name of service provider. On scrutiny of the documents provided by the appellant during audit, it was revealed that the subject dumpers/tippers on which credit was availed by the appellant, were received from M/s SREI Equipment Finance Pvt. Ltd. (SEFPL) under operating lease agreement and reportedly at the relevant period registered in the name of the said company (SEFPL) and not in the name of the appellant who was providing output service. Accordingly, a show cause notice dated 17.10.2016 to the appellant required to show cause:- (i) Cenvat Credit availed amounting to Rs.2,17,62,752/- (Rupees two crore seventeen lakhs sixty two thousands seven hundred and fifty two only) on Dumpers/tippers which are not registered in their name should not be dis- allowed and recovered along with interest from them under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , denial of Cenvat credit on the capital goods to appellant is uncalled for Ld. counsel further submitted that since dumpers/tippers fall under the category of "Capital Goods" after the amendment in 2010, the issue that "capital goods are eligible for cenvat credit" has been dealt in favour of appellant by following decisions:- * Vikram Cement vs. Commissioner of Central Excise, Indore [2006 (197) E.L.T. 145 (S.C.)] * Madras Cements Ltd. vs. Commissioner of Central Excise, Chennai [2010 (257) E.L.T. 321 (S.C.)] * Commissioner of Central Excise, Bhopal Vs. Hindustan Copper Ltd [2016 (342) E.L.T. 282 (Tri. Del.)] It is the case of the appellants that ownership of goods is not a criterion for denial of credit on capital goods and even if it is leased for a particular period, the assessee/appellant is eligible to take Cenvat credit. In support of her submission, ld. Counsel relied upon the following decisions:- * Commissioner of Central Excise, Ludhiana vs. Pepsi Foods Limited [2010 (254) ELT 284 (P & H)] * His Automotives Limited vs. Commissioner of Central Excise, Chennai [2004 (163) ELT 116 (Tri.-Chennai)] * Commissioner of Central Excise, Chennai-IV vs. IL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Also more accord should be given to the colour of the content and the context of the statute rather than with its literal meaning. The amendment in the definition of capital goods w.e.f. 22.06.2010 resulted in confusion regarding the eligibility of CENVAT Credit on capital goods not registered in the name of the output service provider whereas Rule 4(3) of CCR, 2004, clearly stated that "The CENVAT credit in respect of the capital goods shall be allowed to a manufacturer, provider of output service even if the capital goods are acquired by him on lease, hire purchase or loan agreement, from a financing company."It is pertinent to mention herein that the appellant had acquired the capital goods, vis-à-vis, dumpers/tippers, on lease from a financing company and as always it was their bonafide belief that they were eligible for CENVAT credit during the relevant period too and as such did not take registration of the capital goods in their name and have not suppressed any material fact with the intention to evade payment of service tax. 3.4 Ld. Counsel further submitted that the necessary ingredients for invoking the larger period of limitation contemplated under the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified in sub-clauses (zzza) and (zzzv) of clause (105) of section 65 of the said Finance Act. Further vide Notification No. 3/2011-Central Excise (N.T.) dated 01.03.2011, effective from 01.04.2011 Rule 2(k) was substituted as under which does not allow credit of any motor vehicle as input. 5. Ld. AR further submitted that the decisions cited by the appellant are not relevant to the present case in as much as the said decisions were with reference to erstwhile provisions of Cenvat Credit Rules, 2004 i.e. prior to 22.06.2010 and the impugned show cause notice is issued in respect of cenvat credit availed w.e.f 22.06.2010 by the appellant on Dumpers and Tippers as provided in notification No. 25/2010 dated 22.06.2010. In terms of the said Notification, the definition of capital goods in clause (C) was inserted which specifically mentioned that cenvat credit can be availed on dumpers/tippers provided such dumpers/tippers should be registered in the name of service providers. When such dumpers/tippers was not registered in the name of the appellant in the RTO the cenvat credit availed would be inadmissible. He further that aforesaid decisions were pertaining to period prio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Service Tax Final Order No. 52459/2018 dated 06/07/2018has held as follows:- "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. 8. 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 equipments such as dumpers are being used by the appellant to provide output service. We are of the view that dumpers even if classifiable under Chapter 87, can be considered within the definition of inputs, as per Rule 2(k) of the Cenvat Credit Rules, 2004. The definition of inputs as applicable for service provider is given in Rule 2(k)(ii). Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Consequently, the appellant would be eligible for Cenvat credit 6 ST/53655 of 2015 on dumper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led, was not registered in the name of the appellant, as it was in the name of SREI Equipment Finance Pvt Ltd. As the aforesaid notification clearly laid down that such credit could be availed only if the dumpers/tippers were registered in the name of the service provider, the same was not available to the appellant. We rely on the decision of Hon'ble Supreme Court in the case of Commissioner of Cus (Import), Mumbai vs Dilip Kumar & Company [2018 (361) ELT 577 (SC), wherein the it was held that statute has to be construed according to the intention of the Legislature. The Court went on to hold that Words in a statute when clear, plain and unambiguous, only one meaning can be inferred. The relevant paras are reproduced hereinafter:- "41. After thoroughly examining the various precedents some of which were cited before us and after giving our anxious consideration, we would be more than justified to conclude and also compelled to hold that every taxing statute including, charging, computation and exemption clause (at the threshold stage) should be interpreted strictly. Further, in case of ambiguity in a charging provisions, the benefit must necessarily go in favour of subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reter to decide the liability to tax ignoring any amount of hardship and eschewing equity in taxation. Thus, we may emphatically reiterate that if in the event of ambiguity in a taxation liability statute, the benefit should go to the subject/assessee. But, in a situation where the tax exemption has to be interpreted, the benefit of doubt should go in favour of the revenue, the aforesaid conclusions are expounded only as a prelude to better understand jurisprudential basis for our conclusion. We may now consider the decisions which support our view." 11. We also note that vide Notification no. 3/2011-CE(NT) dated 01.03.2011, Rule 2(k) of the Cenvat Credit Rules was amended to disallow credit on any motor vehicle as input. Therefore, we are in agreement with findings in the impugned order in this regard. As regards interest, we note that Supreme Court in the case of Pratibha Processors & Ors vs Union of India & Ors[AIR 1997 SUPREME COURT 138] has held that "Interest is compensatory in character and is imposed on an assessee who has withheld payment of any tax as and when it is due and payable." Accordingly, the demand for interest is also upheld. 12. With respect to the exte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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