TaxTMI 
TaxTMI 
2022 (7) TMI 87
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.... of the impugned order. 04. We have carefully considered the submissions made by both the sides and perused the records. We find that this issue is no longer res-integra as in the appellant's own case this tribunal vide order dated 31.03.2022 passed the following order:- 4. We have considered the rival submissions. We find that the issue regarding admissibility of cenvat credit on warranty service has been examined in detail by the Tribunal in the order in the case of M/s Case New Holland Construction Equipment (I) Pvt Ltd- 2021 (8) TMI 963- CESTAT New Delhi. It is seen that the said order examines the admissibility of credit for periods both pre and post 01.04.2011. The said decisions also examines the decision of Tribunal in the case of Mahindra and Mahindra Ltd cited by the Learned AR. In the said decision following has been observed:- 17. The submissions advanced by the learned Counsel for the appellant and the learned Authorized Representative of the Department have been considered. 18. The appellant claims that it is eligible for CENVAT credit on the in-warranty repair and maintenance services under the 'means' clause of the definition of 'in....
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....Credit Rules. Rule 2(l) was substituted by Notification dated 01.03.2011 w.e.f 01.04.2011 and it is reproduced below : w.e.f 01.04.2011 "2(l) "input service" means any service,- (i) used by a provider of output service for providing an output service; or (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal, and includes services used in relation to modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation upto the place of removal; but exclude, Xxxxxxxxxxx xxxxxxxxxxx xxxxxxxx xxx" (emph....
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....irectly or through the dealers. The period of dispute in the appeal was from July, 2005 to May, 2012. In respect of the air conditioners sold by the appellant either directly or through the dealers to the customers, the appellant was under an obligation to provide free 'repair and maintenance service' during the warranty period of twelve months. This service, at the behest of the appellant, was being provided by the dealers and for the payments received by them from the appellant, service tax was paid by the dealers. The dispute that had arisen in the Appeal was whether the appellant could avail credit of the service tax paid by the dealers on the 'repair and maintenance service' provided by them to the consumers on behalf of the appellant. The Department took a view that the appellant would not be eligible for such CENVAT credit and a demand of Rs. 9,82,03,090/- was made on this basis. The Tribunal observed that the services received by the appellant from the dealers has to be treated as 'input service' used in or in relation to the manufacture of the final products by the appellant and, therefore, the demand that was confirmed was not sustainable. The relevant portion of the deci....
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....ppellant from their authorized service stations with regard to repairs during the warranty period. The Tribunal held that the appellant was justified in availing the CENVAT credit on the service of repairs received from their authorized service stations during the period of warranty in view of the decision of 15 E/52867/2018 the Tribunal in Carrier Air conditioning & Regrigeration. The relevant portion of the decision is reproduced below : "8. We have heard both the sides and perused the record of the appeal. We feel that so far as the credit on services received by appellant from their authorized service stations with regard to free after sale services and repairs etc. of warranty period, the matter is no longer res-integra as this Tribunal in the case of Carrier Air conditioning & Refrigeration Ltd. vs. CCE, Gurgaon - 2016 (41) S.T.R. 1004 (Tri. - Del.) has already held that services provided by the authorized representative/ service stations are on behalf of the manufacturer and the service tax paid on availment of such services by the manufacturer, they are entitled for Cenvat credit of such input services............... 9. Accordingly, we hold that since the ....
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....eriod from July 2005 to May 2012. The decision of the Tribunal in Honda Motorcycle concerns the period from June 2011 to March 2016. These decisions, therefore, cover the period prior to 01.04.2011 and post 01.04.2011 and are based on the 'means' part of the definition of 'input service' and have not considered the 'includes' part of the definition of 'input service. The decisions clearly hold that the services received from the dealers would be 'input service' used in or in relation to the manufacture of the final products. 31. The factual position in the Division Bench decisions of the Tribunal and the decision dated 24.11.2017 rendered by the Tribunal in the case of the appellant for earlier period is almost identical. It also needs to be noted that the decisions of the Tribunal in Carrier Air conditioning & Refrigeration, Honda Motorcycle and Samsung India Electronics are based on the 'means' part of the definition of 'input service', which part of the definition had not undergone any change on 01.04.2011. However, the Tribunal in the decision dated 24.11.2017 distinguished the aforesaid decisions of the Tribunal solely for the reason that an amendment had been made in....
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....g of the expression 'per incuriam' is 'through want of care'. In Black's Law Dictionary, 5th Edition, it has been defined as "through inadvertence". In Halsbury's Law of England Fourth Edition, Volume 26, it has been stated: "A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statue or rule having statutory force. A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties, or because the court had not the benefit of the best argument, and as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some consistent statue or binding authority. Even if a decision of the Court Appeal must follow its previous decision and leave the House of Lords of rectify the mistake." 37. In Babu Parasu Kaikadi (Dead) by Lrs. vs....
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....s, therefore, clearly a case where that part of the statutory provision that should have been applied was ignored and that part of the statutory provision that was not relevant to the controversy was considered. When CENVAT credit was sought to be justified by the appellant under the 'means' clause, for which reliance was placed on the earlier decisions of the Tribunal, there was no necessity to examine whether it can be justified under the 'includes' clause or 'excludes' clause of the definition. The decision rendered by the Tribunal on 24.11.2017 is, therefore, clearly per incuriam. 41. It is, therefore, considered appropriate to follow the three decisions rendered by the Tribunal in Carrier Air conditioning & Refrigeration, Honda Motorcycle and Samsung India Electronics in preference to the later decision rendered on 24.11.2017, which has distinguished these three decisions on a non-existent ground. This is what was observed by the Supreme Court in Babu Parasu Kaikadi and the relevant portion is reproduced below: "18. Furthermore, this Court, while rendering judgment in Dhondiram Tatoba Kadam vs. Ramchandra Balwantrao Dubal was bound by its earlier decisi....