2026 (1) TMI 713

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....y claiming the benefit of Notification 12/2003-ST. The value of goods sold or deemed to have been sold, requires to be exclude for the purpose of computing the value of service rendered by the appellant. 3. The Show Cause Notice was issued to the appellant by dated 19.10.2010 for the period of disputes April 2005 to March 2010, invoking extended period of limitation along with proposal to impose penalty under Section 76, 77 and 78 of Finance Act, 1994. The Adjudicating Authority by the O-I-O No. 6/2012 dated 27.01.2012 confirming the entire demand with interest and imposed penalty against appellant. The appellant filed an Appeal No.ST/953/2012, before the Tribunal. 4. The Tribunal vide Final Order No. 2722 of 2013 dated 31.12.2013 and held that the appellant is entitled to claim exclusion of the value of the goods and raw materials claimed to have been sold to the recipient of the service as part of their repair and maintenance service. The matter was remanded for Denovo consideration only for the purpose of producing the proof with regard to the value of goods and materials deemed to have been sold. In principle, the Tribunal has held that the appellant is entitled for the b....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....15 (318) E.L.T. 275 (Tri-Del)] (vii) Balaji Manpower Services Vs Union of India, reported in [2019 (31) G.S.T.L. 418 (P&H)] (viii) Hospitech Management Consultants Pvt Ltd., Vs Commissioner of Service Tax, New Delhi, reported in [2023 (385) E.L.T. 575 (Tri-Del)] 9. Learned Counsel for the appellant relied on the following judgment in this regard: (i) Commissioner of Central Excise, Agra Vs Okay Glass Industries reported in [2015 (330) E.L.T. 872 (All)] (ii) Safety Retreading Co (P) Ltd., Vs Commissioner of Central Excise, Salem reported in 2017 (48) S.T.R. 97 (S.C.)] (iii) Commissioner of Customs and Central Excise Vs Balaji Tirupati Enterprises reported in [2013 (32) S.T.R. 530 (All)] (iv) Commissioner of Central Excise, Mumbai-I Vs Indian Oil Tanking Pvt Ltd., reported in [2017 (6) G.S.T.L. 417 (Tri-Mum)] (v) Tree House Hotel Club & Spa Vs Commissioner of Central Excise, Jaipur - I reported in [2017 (4) G.S.T.L. 39 (Tri-Del)] (vi) Jct Ltd., Vs Commissioner of Central Excise, Jallandhar, reported in [2015 (318) E.L.T. 275 (Tri-Del)] (vii) Balaji Manpower Services Vs Union of India, reported in [201....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....eemed sale for the purpose of levy of Service Tax. 14. Appellant had taken the ground in previous appeal that during the period 01.04.2005 to 30.09.2007, they have not taken any input credits on the input used for the remaining service and for the subsequent period from 01.10.2009 to 31.03.2010, they have taken Cenvat Credit of Rs 2,18,669/- and reversed the same with interest. In this regard the relevant para of the previous appeal as thus: "T. It is submitted that during the period 01.04.2005 to 30.09.2007 the appellants have not taken any input credits on the input used for the rewinding service. Therefore, the appellants have satisfied the condition of the notification 12/2003. Under the said notification the bar of CENVAT Credit is relatable only to the CENVAT Credit of duty paid on the inputs or the materials used. In the circumstances the condition of notification regarding non availment of CENVAT Credit on the duty paid on the input has been satisfied. For the subsequent period from 01.10.2009 to 31.03.2010, though the appellants have taken CENVAT Credit of Rs. 2,18,669/- the appellants have reversed the same with interest. It is well settled that the moment CEN....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....f the provisions of Section 67 the value of goods sold or deemed to have been sold, requires to be excluded from the taxable value for computation of Service Tax liability. Consequently, provisions of Notification No. 12/2003 merely explicate the inherent intent of Section 67 of the Act. 7. As a consequence of the preceding analysis, the appellant is entitled to claim exclusion of the value of the goods and raw materials claimed to have been sold to the recipient of the service as part of the management, maintenance or repair agreements and works executed in pursuance thereof. The appellant is entitled to such exclusion on producing proof of the value of the goods and materials deemed to have been sold to the service recipient. 8. Since, the adjudication order proceeds on the flawed premise and presumes that the value of goods and material deemed to have been sold is not liable to exclusion either under the provisions of Section 67 or qua Notification No. 12/2003, the order invites invalidation and is accordingly quashed. The matter is however, remitted to the Adjudicating Authority for denovo disposition the appellant is at liberty to submit proof, of the value o....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... set aside. Since the duty demand itself has been set aside the Revenue's appeals regarding denial of cum-duty benefit exemption and penalty also would not survive. Thus, while the appeal Nos. E/330-331f of 2009 are allowed and the appeal Nos. E/555-556 of 2009 and 1048-1049 of 2009 filed by the Revenue are dismissed." 18. The decision in the case of Tree House Hotel Club & Spa, supra, and JCT Ltd., supra, are squarely applicable in the instant appeal and we find that appellant is eligible for the above mention Notification No. 12/2003-ST dated 20.06.2003. 19. Learned Counsel for the appellant also submits that Commissioner has gone beyond the scope of remand order by denying the benefit of notification. In this regard, he is relied on Hon'ble Allahabad, High Court decision Commissioner of Central Excise, Agra Vs Okay Glass Industries [2015 (330) E.L.T. 872 (All.)] wherein, held that it was not open for Adjudicating Authority to pass order ignoring remand direction and confirm the demand of same grounds as taken in first O-I-O which was set aside by the Tribunal. The Relevant para of the decision as are reproduced as thus: "24. In the case of Commissioner of Income T....