TaxTMI 
TaxTMI 
2018 (12) TMI 929
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....hicles under free after sale service and warranty period services ; (III) service tax paid on the rent for common civil infrastructure services availed by the appellant from M/s Honda Siel Car India Ltd. The Department had entertained a view that the appellant have wrongly availed input service credit on the above-mentioned services and a show cause notice demanding reversal of Cenvat credit amounting to Rs. 9,85,38,215/- was demanded vide show cause notice dated 06/07/2016 which has been adjudicated by the learned Commissioner vide his order dated 09/02/2017, wherein the above-mentioned amount of the Cenvat credits have been confirmed under Rule 14 of Cenvat Credit Rules, a penalty of equal amount have also been imposed under Section 11AC (i) (c) of the Central Excise Act, 1944, personal penalty of Rs. 5,00,000/- and Rs. 10,00,000/- has also been imposed on Shri Sunil Kumar Gupta, Manager (Taxation) and Shri Naveen Kumar, Division Head (Finance and Account) of the appellant, respectively. The appellants are before us against the above-mentioned order-in-original. The learned Advocate appearing on behalf of the appellant has contended that repair and maintenance services received b....
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....n 2 contractual arrangements are at play, viz. one between the appellant and customer for provision of free of charge after-sale services in lieu of free service coupons and during subsistence of warranty policy. Second between authorized service station and the appellant for provision of after-sale services in return of consideration arising from the appellant. (iv) In terms of the second contractual arrangement referred above, the authorized service stations are obligated to provide after-sale services to customers. In consideration of these services, the authorized service stations raise invoices on the appellant alongwith applicable service tax. (v) The appellant avails credit on the above mentioned services received from authorized service stations. The Revenue has sought to deny credit on the ground that these services were not received by the appellant". 2. The learned Counsel has relied on the decisions of this Tribunal which support his point of view with regard to the afore-mentioned issue. The case laws referred are as that of M/s Carrier Airconditioning & Refrigeration Ltd. vs. CCE, Gurgaon - 2016 (41) S.T.R. 1004 (Tri. - Del.), CCE, Nashik vs. Mahindra & Mahindra Lt....
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.... of the industrial area, including the common infrastructure area, will severely impinge on the security of the appellant‟s factory premises. The boundary wall forms a necessary measures to prevent encroachment, trespassing, theft etc. Its absence would cause threat to the safety of appellant‟s premises. Thus, such services are in relation to „security‟ as well. Similarly, „inclusive‟ clause of the definition of term „input service‟ also includes within its ambit services received in relation to „inward transportation of inputs or capital goods‟ and „outward transportation‟. Similarly, the appellant is required to gain access to roads, street lighting, drainage ensuring unclogged roads etc. for outward transportation of the manufactured products. (iii) that these common infrastructure facilities clearly qualify as input service used in or in relation to the manufacture of final product and the appellant is entitled to credit of the service tax paid by Honda Cars on license fee charged for use of these common infrastructural facilities. (iv) It has further been argued that the Commissioner has erred in holding....
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....nal newspapers. The INS charges a paltry commission of around 2% from the persons who are interested in getting the advertisement published in the National newspapers. The service tax paid on this commission, the Department has denied them the Cenvat credit which is legally not sustainable in the sense that the commission paid is for the purpose of advertisement and not for any other purpose, and since the cost of advertising is integral part of the cost of their finished product, the services availed and any service tax paid on such services need to form a part of the cost of their finished product and they have actually included such cost into the price of their finished product namely two wheelers motorcycle/scooters and thus they are very much entitle for taking credit of such cost. The learned Advocate had also tried to explain the entire exercise, as follows : that "(i) As already submitted, these accredited agencies or agents receive various benefits, like higher credit period, incentives, discounts etc., which they generally pass on, wholly or partly, to the entities placing advertisements through these agents. This is evident from a reading of the copy of invoice of the p....
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.... decisions of this Tribunal as well as High Court on the issue in case of CCE, Bangalore - II vs. Millipore India Pvt. Ltd. - 2012 (26) S.T.R. 514 (Kar.) and Indian Oil Corporation Ltd. vs. CCE, Mumbai - II - 2014 (36) S.T.R. 833 (Tri. - Mum.). 6. The learned Advocate has also contended that demand is barred by extended period of limitation as none of the elements as provided under Section 11A (4) are present for invoking the larger period of limitation. It has further been added that basic ingredients required for invoking the extended time proviso namely suppression, fraud, collusion, mis-representation with intend to evade central excise duty are not present in their case. It can be seen that the issue at hand is purely of interpretation of the law and all the facts regarding availment of Cenvat credit on all the three counts have always been available with the Department. The learned Advocate has also relied upon various decisions of this Tribunal as well as High Courts. A summary of such decision is given here below :- * Prolite Engineering Co. vs. Union of India - 1995 (75) E.L.T. 257 (Guj.) * Accurate Chemicals vs. Union of India - 2015 (324) E.L.T. 453 (All.) * BCH E....
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....te that Central Excise duty had been paid on the value which included the warranty charges. During the warranty period, the appellant were under obligation to provide free repair and maintenance services to the consumers, who had purchased the air conditioners from them. However, instead of providing the free repair and maintenance service directly in discharge of their obligation, the appellant roped in the dealers who provided free repair and maintenance to the consumers on their behalf and the dealers for providing this service on behalf of the appellant, received the payment from the appellant and on that amount, they paid the service tax. The point of dispute is as to whether the service provided by the dealers to the appellant is an input service and whether the appellant would be eligible for Cenvat credit in respect of the same. The service received by the appellants from their dealers is Business Auxiliary Service which has to be treated as an input service for the appellant used in or in relation to manufacture of their final products, as free warranty repair and maintenance during warranty period, has enriched the value of the goods. This issue stands decided in favour o....
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.... the service of booking advertisement provided by them to the appellant, and service tax has been charged on this 2% commission only. (iii) Therefore, it is evident that the service tax in question pertains to the 2% commission charged by the print media agent from the appellant for the service of booking advertisement through them, provided by the agent to the appellant and it does not pertain to the 15% commission received by the agent from the print media and passed on to the appellant, as has been erroneously assumed by the learned Commissioner, in the impugned order. 11. Thus, it is clear that for getting access to the agency who is actually going to undertake advertisement of the material provided by the appellant, services of a print media agent are being availed and a commission of 2% is being paid on which service tax is being charged by the print media agent. The appellant is taking credit of such service tax. We are of the view that the activity of hiring of print media agent for ultimate purpose of advertising is very much part of advertising service and since the advertisement charges forms the part of assessable value of the appellants finished product any cost incu....
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....asting services and advertising agency services. After verifying that the appellant had availed both the services and has also borne the incidence of Service Tax, he came to the conclusion that the appellant is rightly eligible for the benefit of the Cenvat credit of the Service Tax paid on broadcasting service. The same ratio shall apply for the previous period also. Therefore, we do not find any merit in the impugned order. Accordingly, we set aside the same and allow the appeal with consequential relief, if any, in accordance with law". 12. Thus, we are of the view that appellant are legally entitled to avail input service credit of the service tax paid by them on the commission charged by the print media agent for advertising their advertisement material into various newspapers. 13. Now coming to the question whether the appellant are entitled for Cenvat credit of the service tax paid by them on renting of infrastructural facilities from M/s Honda Siel Car Pvt. Ltd. or not. We feel that the basic argument of the learned Advocate in this regard is that common infrastructural facilities are vital for undertaking manufacturing activity and without such infrastructural facilities....