TaxTMI 
TaxTMI 
2024 (5) TMI 560
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....icles and parts thereof and is registered with the Service Tax Department for rendering taxable services viz. 'Engineering Consultancy', 'Business Auxiliary Services' etc and availed Cenvat Credit on various input services. The appellant imports the motor-bikes manufactured by Suzuki Motors Corporation, Japan ('Suzuki Japan') and sold such bikes in India. Since, the imported bikes are expensive and difficult to sell in Indian Market, Suzuki Japan provides price support/subsidy (per unit of bike basis) to the appellant. Further, the appellant also receives reimbursement of certain percentage of the advertisement expenses and expenses incurred for warranty claims from Suzuki Japan. Audit of the records of the appellant was conducted, wherein, it was observed that rebate/subsidy/reimbursements received from Suzuki Japan on bikes imported is for providing Business Support Services, that Cenvat Credit availed on advertisement expenses incurred is not available to the appellant to the extent it is reimbursed by Suzuki Japan, that the appellant short paid service tax @10.30% instead of paying service tax @12.36% during the relevant period on technical services. On these allegations, a sho....
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....t has not filed any appeal against such orders and hence, they have attained finality. Moreover, the judgment of Suzuki Motorcycle (I) Pvt Ltd (cited supra) for period 2006-07 and 2007-08 has not been challenged and is accepted by the Department as evident from para 23 of the order dated 09.12.2015. It is a settled principle of law that the Department cannot take contrary stands in proceedings on the same issue for the same assessee. In this regard, the she relies on the following case-laws: a) Alufit India Pvt Ltd vs. Commissioner of Customs - 2022 (4) TMI 1258 CESTAT Bangalore b) J.B. Construction vs. CCE - 2022 (5) TMI 425 CESTAT Mumbai c) A Infrastructure Ltd vs. Commissioner of CGST - 2021 (9) TMI 141 CESTAT New Delhi d) SRF Ltd. vs. Commissioner, CE&ST, 2021 (8) TMI 696-CESTAT New Delhi She has prayed that in view of the decisions cited supra, the impugned order is liable to be set aside. 4.6 She further submits that the amount of subsidy/rebate provided by Suzuki Japan to the appellant is pursuant to difficulty faced while selling such expensive bikes in the Indian market. Therefore, Suzuki Japan has subsidized the price of such bike....
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....ssioner of Central Excise & CGST- Jaipur - 2023 (2) TMI 990 c) Philips India Ltd. vs. Collector of Central Excise, Pune - 1997 (91) E.L.T. 540 (S.C.) d) Mahindra & Mahindra Ltd. vs. Collector of C. Ex., Bombay 1998 (103) E.L.T. 606 (Tribunal) [affirmed by the Supreme Court at 1999 (111) E.L.T. A126 (S.C)] 4.9 Further, she submits that the appellant also receives some reimbursement expenses in respect of after sale warranty services, miscellaneous expenses also. The Department took the view that warranty services were responsibility of Suzuki Japan and were outsourced to the appellant. She argues that this finding is factually incorrect as the obligation to provide the warranty services to the ultimate customers is of the appellant and not Suzuki Japan and therefore, such reimbursement of expenses from Suzuki Japan is not towards any service being provided to them, let alone under the category of Business Support Service. 4.10 As an alternative argument, the learned Counsel submits that even if the expenses received by the appellant are considered to be towards a service, the same shall qualify as export of service in terms of Rule 3 of Export of Service Rule....
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....In this regard, she places reliance on following cases: • Coca Cola (I) Pvt Ltd. vs. CCE, Pune-III - 2009 (242) E.L.T. 168 (Bom.) • Commissioner vs. Bellsonica Auto Components India Pvt Ltd. - 2015 (40) S.T.R. 41 (P&H) In view of this, she has prayed that the demand to the extent of denial of Cenvat Credit, is liable to be set aside. 4.15 As regards invocation of extended period of limitation, the learned Counsel submits that in the present case the demand prior to April 2010 has been made by invoking extended period of limitation. Further, the authorities themselves have been taking contrary view regarding the availability of Cenvat Credit and demand of service tax under BSS in appellant's own case which shows that the issue involves interpretation of law and legal provisions and hence, extended period cannot be invoked. 4.16 She also submits that for the invocation of extended period, the Department needs to establish fraud, collusion, wilful misstatement or suppression of facts or contravention of any of the provisions of this Act or rules with intent to evade the payment of tax. Any of these ingredients have not been established by the Dep....