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2019 (10) TMI 587 - AT - Service TaxCENVAT Credit - input services - Repair & Maintenance Service of Audio Systems - The credit availed on the pollution equipment procured from M/s AVL India Pvt. Ltd. - SMS Services Campaign - Courier Agency Services - Mobile Phone Services - Security Services, Chartered Accountant Services, etc. - Consultancy Services - Advertising & Event Management Services - Manpower Recruitment Service, Test Inspection & Certification Service, Architect Service, Insurance Service and other Repair & Maintenance Services. Repair and Maintenance of Audio System - HELD THAT:- The Appellant is entitled to avail Cenvat Credit of service tax paid on repair and maintenance service - reliance placed in the case of M/S. UTTAM TOYOTA VERSUS CCE & ST, GHAZIABAD [2019 (2) TMI 573 - CESTAT ALLAHABAD]. Credit Availed On The Pollution Equipment Procured From M/s AVL India Pvt. Ltd. - only reason why this Cenvat Credit been denied to the Appellant is that it was not contested in reply to the show cause notice and the invoices had also not been submitted - HELD THAT:- This is apparently incorrect because not only had the Appellant contested this issue but had also enclosed the invoices. The procurement of the pollution equipment purchased by the Appellant is essential for provision of output service and therefore, the Appellant is entitled to take the credit. SMS Service Campaign - HELD THAT:- Advertisement of the Service Station of the Appellant is essential as it has to attract customers for servicing automobiles. It is not disputed that service station is not located at the place indicated by the Appellant. Hence, credit can be availed by the Appellant on service tax paid on advertising expenses. Courier Agency Services - HELD THAT:- The Adjudicating Authority could not have denied credit only for the reason that the invoices issued by the service providers did not contain the registration number - credit allowed. Mobile Phone Services - credit denied to the Appellant for the reason that the invoices against which credit was availed, were raised upon individual users of mobile phones (employees of the Appellant) and not the Appellant - HELD THAT:- The Department has not produced any evidence to rebut the presumption that the mobile phones were used in connection with the business of the Appellant - the Appellant is clearly entitled to avail the credit for mobile phones since the mobile phones were provided by the Appellant and payment of the bills was also made by the Appellant. Security Services And Chartered Accountant Services - HELD THAT:- The appellant entitled to credit following earlier decisions. Consultancy Services - HELD THAT:- When the order on which reliance was placed in the show cause notice has been set aside, the Appellant is entitled to avail the Cenvat Credit. Advertising and Event Management Services - Credit denied on the ground that there is no evidence to establish a nexus between the input and output service and that the amount incurred was reimbursed to the Appellant - HELD THAT:- The Appellant is, therefore, clearly entitled to avail the benefit of Cenvat Credit following earlier decision. Manpower Recruitment Service, Test Inspection & Certification Service, Architect Service, Insurance Service and other Repair & Maintenance Services - HELD THAT:- Appellant entitled to credit following earlier decoision. Valuation - Inclusion of the value of spare parts in assessable value - HELD THAT:- When spare parts are sold while providing “Authorised Service Station Service”, a sale tax place and VAT is charged by the Appellant. The Department, therefore, cannot levy service tax on the value of the spare parts. This is also clear from the Circular dated 23 August 2007 issued by the Department - demand set aside. Levy of service tax - amount received under warranty claims - HELD THAT:- In view of the Circular dated 23 August 2007, the service can be classified under “Authorised Service Station Service” but not under “Business Auxiliary Service” - leviability of service tax on this head, therefore, has to be set aside. Levy of service tax - commission received from banks - HELD THAT:- A demand cannot be confirmed under a category different from that proposed in the show cause notice - demand set aside. Imposition of interest and penalty - HELD THAT:- The issues on which demand is set aside, the penalty is also set aside. Appeal allowed in part.
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