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2010 (10) TMI 216 - AT - Service TaxWaiver of pre-deposit U/s 35F - Cenvat credit - The Apex Court’s ruling in the case of Maruti Suzuki (P.) Ltd. (2009 -TMI - 34348 - SUPREME COURT), which was in relation to the definition of ‘input’ under Rule 2(k) of the Cenvat Credit Rules, 2004, was applied by a coordinate bench in the case of Kbace Tech (P.) Ltd. (2010 -TMI - 77017 - CESTAT, BANGALORE) in relation to a taxable service - The Bench relied on Maruti Suzuki (P.) Ltd. to hold that any service mentioned in the inclusive part of the definition of ‘input service’ should satisfy the legal requirements embodied in the main part of the definition - It also took the view that Cenvat credit on any taxable service would not be allowed by mere reason of the fact that the cost of the service was included in the assessable value of the final product of the manufacturer who claimed the Cenvat credit - - Therefore, the appellant cannot claim Cenvat credit on maintenance and repairs service on the ground that the cost of the service was included in the assessable value of the pumps. Demand of duty - The show-cause notice was issued beyond the normal period of limitation by alleging that the appellant suppressed the factum of availment of Cenvat credit on maintenance and repairs service with intent to evade payment of duty on final product - The defence of the appellant vis-a-vis the invocation of the extended period of limitation is that the factum of availment of Cenvat credit on all ‘input services’ was clearly disclosed in the periodical returns filed by the appellant - The learned Counsel has, however, fairly conceded that the factum of availment of Cenvat credit on maintenance and repairs service was not specifically mentioned in the returns - Therefore, the demand of duty is not time-barred. The learned counsel has also pointed out that the quantification of duty is incorrect - He submits that the Commissioner has demanded duty equivalent to Cenvat credit availed on numerous services and that approximately 56 per cent of the amount only will take care of maintenance and repairs service - In the memo of appeal, the appellant has quantified this amount (Rs. 61 ,56,300) being 56 per cent of Rs. 1,09,93,392 - For the present purpose, direct the appellant to pre-deposit Rs. 61,56,300 under section 35F of the Central Excise Act - It is ordered, accordingly - The amount shall be deposited within a period of four weeks.
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