TMI Blog2018 (2) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... hat interest is payable. Valuation - includibility - various expenses incurred by the respondent towards telephone, insurance, freight, courier etc - Held that: - The fact whether certain services are eligible for Cenvat Credit as input service is to be determined on the basis of definitions in the Cenvat Credit Rules, 2004. There is no justification for adding the value of such input services in the total assessable value for payment of service tax only for the reason that such Cenvat Credit have been taken. Business Auxiliary Service - target incentives - Held that: - the issue already stands settled in favour of the respondent in the case of Sharyu Motors V/s CST, Mumbai [2015 (11) TMI 229 - CESTAT MUMBAI], in which an identical i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cenvat Credit which was reversed amounting to ₹ 1,37,839/- by the appellant. However, Revenue is of the view that interest on the said amount is required to be paid, from the date of availment to the date of such reversal. She relied on the Board s clarification NO. 942/3/2011 CX dated 14/03/2011 in which the issue has been clarified, following the decision of the Apex Court in the case of Ind-Swift Labs V/s UOI [2011 (268) ELT 3 (SC)]. b. The Second issue is with reference to the view of the Revenue that various expenses such as telephone, insurance, freight, courier service etc for which claim has been made for Cenvat Credit as input services, should be included in the value of the taxable service rendered by the appellant. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... output service and the provisions of sections 11a and 11ab of the excise act or sections 73 and 75 of the finance act, shall apply mutatis mutandis for effecting such recoveries. A reading of the aforesaid provisions makes it very clear that the said provision is attracted where the Cenvat Credit has been taken or utilized wrongly or has been erroneously refunded. In view of the aforesaid judgment of the Apex Court, the question of reading the word 'and' in place of 'or' would not arise. It is also to be noticed that in the aforesaid Rule, the word 'avail' is not used. The words used are 'taken' or 'utilized wrongly*. Further the said provision makes it clear that the interest shall be recovered i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... telephone, insurance, freight, courier etc, should be included in the value of the taxable service and differential service tax is to be paid. We find that issue has been discussed by the Appellate Authority in 8.2. (ii). The Revenue is of the view that such expenses are required to be included in full value in view of the CBEC Circular dated 28/08/2007 which has clarified that any goods used during the course of providing service are to be treated as inputs used for providing the service and accordingly cost of such inputs should form integral part of the value of taxable service. 8. But we find that in the present case the quantum of undervaluation has been arrived at by simply adding all the expenses incurred by the appellant. The on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receive some amount as an incentive. It is the case of the Revenue that such amount is taxable under Business Auxiliary Services, we find no substance in the arguments raised by the learned AR as well as the reasoning given by the adjudicating authority. The said amounts are incentive received for achieving the target of sales cannot be treated as Business Auxiliary Services, as incentive are only as trade discount which are extended to the appellant for achieving the targets. We find that this view has been taken by the Tribunal in the case of Sai Service Station (supra). With respect, we reproduce the relevant paragraphs: - 14. In respect of the incentive on account of sales/target incentive, incentive on sale of vehicles and incenti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
