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2014 (10) TMI 414 - AT - Service TaxUtilization of 20% excess credit of tax payable - contravention of Rule 6(3)(C) of Cenvat Credit Rules, 2004 - exemption Notification No. 22/2006, dated 31-5-2006 - Cenvat credit taken of service tax paid on commission paid to agencies - whether the credit paid on sales commission is an admissible input for the output service viz. repair and maintenance of the XBIS - Held that:- it cannot be said that maintenance and repairs services rendered by the appellant are part of the conditions of the sale. In my opinion, in this case, the sale and AMC cannot be said to be the result of composite contract. In such circumstances, the stand taken by the original adjudicating authority that the credit paid on sales commission is not admissible has to be upheld. However, at this stage learned C.A. submits that even the credit which was not taken by the appellant at all has also been included for the purpose of demand. He is not able to quantify the exact amount. Therefore, actual amount of credit taken has to be determined by the original adjudicating authority. In the case of sales contract and AMC, the appellant could have entertained a view that credit was admissible. Having regard to the type of item being sold and terms and conditions of the sale, I consider that this is a fit case for considering waiver of penalty under Section 80 of the Finance Act, 1994. Accordingly, in the facts and circumstances, the penalty is set aside. - demand of Cenvat credit on the basis of contravention of Rule 6(3) of Cenvat Credit Rules. The demand of Cenvat credit availed on sale commission has to be worked out on the basis of actual credit availed by the appellant. For this purpose, the matter is remanded to the original adjudicating authority - Decided partly in favour of assesse.
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